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COMPILATION 



OF 



PUBLIC TIMBEE LAWS 



AND 



KEGULATIONS AND DECISIONS 
THEKEUNDER. 



Issued Feljx-iaary- 14, 1903. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1903. 



COMPILATION 



OF 



PUBLIC TIMBER LAWS 

AND 



KEGULATIONS AND DECISIONS 
THEREUNDER. 



Issiaetl Februax'y 14, 1903. 



WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1903. 




b^s- 



,1" 






Department of the Interior, 

General Land Office, 

Washington, D. C, Felyrnary U, 1903. 
The following compilation of existing lawn relating to timber on the 
public lands, with the rules and regulations thereunder, and decisions, 
opinions, and rulings in relation thereto, is issued for the information 
of those concerned. 

W. A. Richards, 

Comrnissio7ie7\ 
Approved : 

E. A. Hitchcock, Secretm^y. 



SYNOPSIS OF LAWS RELATING TO TIMBER ON PUBLIC LANDS. 



Section 2458, U. S. R. S., authorizes the Secretary of the Navy, under the direction 
of the President, to cause such vacant and unappropriated lands of the United 
States as produce the Hve oak and red cedar timbers to be explored, and selec- 
tion to be made of such tracts or portions thereof, where the principal jjrowth is 
of either of such timbers, as in his judgment may be necessary to furnish for the 
Navy a sufficient supply of the same. 

Section 2459, U. S. R. S., authorizes the President to appoint surveyors of public 
lands to explore and select the lands described in the preceding section, and pro- 
vides that the tracts thus selected, with the approbation of the President, shall 
be reserved, unless otherwise directed by law, from any future sale of public 
lands, and be appropriated to the sole purpose of supplying timber for the Navy 
of the United States. 

Section 2460, U. S. R. S., authorizes the President to employ so much of the land and 
naval forces of the United States as may be necessary effectually to prevent the 
felling, cutting down, or other destruction of the timber of the United States in 
Florida, and to take such other measures as may be advisable for the preserva- 
tion of the timber of the United States in Florida. 

Section 2461, U. S. R. S., provides a fine of not less than triple the value of the tim- 
ber and imprisonment not exceeding twelve months in instances in which timber 
is cut or removed from public lands reserved or purchased for the use of the 
Navy or from any other public lands for use other than for the Navy of the 
United States. (See sec. 4751, U. S. R. S.) See also the following: Act of March 
1, 1817, 3 Stat., 347 (sees. 2458 and 2459, U. S. R. S. ), and act of February 23, 1822, 
3 Stat., 651 (sec. 2460, U. S. R. S.). 

Section 2462, U. S. R. S., provides for the forfeiture to the United States of any vessel 
having on board, with knowledge of the master, owner, or consignee, timber 
taken from Naval Reserve or other public lands with intent to transport the same 
to any port or place within the United States or for export to any foreign coun- 
try, and further provides that the captain or master of such vessel shall pay to 
the United States a sum not exceeding $1,000. (See sec. 4751, U. S. R. S.) 

Section 2463, U. S. R. S., provides that collectors of customs in Alabama, Mississippi, 
Louisiana, and Florida, before allowing clearance to any vessel having on board 
live-oak timl)er, must ascertain that the same was cut from private lands, or if 
from public lands, by consent of the Navy Department; and also provides that 
timely prosecution be instituted against parties guilty of depredations on live oak 
in those States. (See sees. 4205 and 4751, U. S. R. S.) 

Section 4205, U. S. R. S., reads as follows: " Collectors of the collection districts within 
the States of Florida, Alabama, Mississippi, and Louisiana, before allowing a 
clearance to any vessel laden in whole or in part with live-oak timber, shall 
ascertain satisfactorily that such timber was cut from private lands, or if from 
public lands, by consent of the Department of the Navy." (See sec. 2463.) 

Section 4751 , U. S. R. S. , provides that all penalties and forfeitures under sections 
2461, 2462, and 2463 shall be recovered, etc., under the direction of the Secretary 
of the Navy, one-half to be paid to the informers or captors and the other half 
to tl>e Secretary of the Navy, and also authorizes the Secretary to mitigate any 
fine, penalty, or forfeiture so incurred. 



6 Si/nopsf's of Zmos. 

Section 5264, U. S. R. S., provides for the use of timber by telegraph companies for 
the construction, maintenance, and operation of lines of telegraph. 

Section 5388, U. S. R. S., provides a fine of not more than |500 and imprisonment 
not more than twelve months in every instance in which timber is unlawfully 
cut or injured on lands reserved or purchased for military or other purposes. 
(See sees. 2460 and 2463, U. S. R. S. See also act of June 4, 1888; 25 Stat., 166, 
amending this section.) 

Act of March 3, 1875 (18 Stat., 481) , section 1, provides a fine of not exceeding $500 
or imprisonment not exceeding twelve months in instances in which ornamental 
or other trees on public lands which have been reserved or purchased by the 
United States for any public use have been cut or injured. Section 2 provides a 
fine not exceeding $200 or imprisonment not exceeding six months for the break- 
ing open or destroying of any gate, fence, hedge, or wall inclosing any lands 
reserved or purchased 1)y the United States. Section 3 provides a penalty of not 
exceeding $500 or imprisonment not exceeding twelve months for the breaking 
in of any inclosure around lands reserved or purchased by the United States, and 
permitting cattle, horses, and hogs to enter therein when they may or can destroy 
the grass, trees, or other property of the United States. 

Act of March 3, 1875 (18 Stat., 482) , grants the right of way through the public lands 
of the United States to any railroad company which has filed with the Secretary of 
the Interior dtie proof of its organization, etc. , and also the right to take from lands 
adjacent to the line of the road timber necessary for the construction of the road. 
The several land grants to railroads also authorize them to cut timber from 
public lands for construction purposes. This authority, however, is confined 
strictly to timber for construction purposes in every grant except that to the 
Denver and Rio Grande Railroad, which authorizes said road to take timber for 
repairs also on the part of the line constructed thereunder. 

Act of September 29, 1890 (26 Stat., 496) , forfeited the grants to all uncompleted 
railroads to the extent of the grants for the unconstructed portions of such roads. 

Act of April 30, 1878 (20 Stat., 46), section 2, provides that if any timber cut on the 
public lands shall be exported from the Territories of the United States it shall 
be liable to seizure by United States authority wherever found. 

Act of June 3, 1878 (20 Stat., 88), authorizes citizens and bona fide residents of Colo- 
rado, Nevada, New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, and Mon- 
tana, and all other mineral districts, to use for building, agricultural, mining, or 
other domestic purposes, timber on public lands therein, said lands being min- 
eral and not subject to entry under existing laws of the United States except for 
mineral entry. 

Act of June 3, 1878 (20 Stat., 89), section 1, provides for the sale of unreserved, 
unoffered surveyed public timber lands in California, Oregon, Nevada, and Wash- 
ington, in quantities not exceeding 160 acres, to any one person or association 
of persons, at $2.50 per acre. Section 4 prohibits the cutting, removing, or 
destroying of any timber on public lands in the States named with intent to 
export or dispose of the same, under penalty to the trespasser and the owner or 
consignee of any vessel or railroad on which the timber is transported, of a fine 
of not less than $100 nor more than $1,000; and provides "that nothing herein 
contained shall prevent any miner or agriculturist from clearing his land in the 
ordinary working of his mining claim, or preparing his farm for tillage, or from 
taking the timber necessary to support his improvements." Section 5 provides 
that any person who is prosecuted in the States named for trespass under section 
2461, U. S. R. S., if not for export from the United States, may be relieved from 
prosecution by paying a sum equal to $2.50 per acre for the land on which the 
timber was cut. 

This act was made ajiplicalAe to all the jMiblic-land States by act of August 4, 
1892 (27 Stat., 348). 



Si/?iOj)sis of Laws. 7 

Act of June 15, 1880 (21 Stat., 237), provides that where timber was unlawfully cut 
from public timber lands prior to March 1, 1879, and the lands have subsequently- 
been entered and the Government price paid therefor in full, no criminal pro- 
ceedings for trespass shall be further maintained; and no civil suit shall be 
maintained for timber taken in clearing the land for cultivation, or working a 
mining claim, or for agricultural or domestic purposes, or for maintaining the 
improvements of a settler, etc., or for timber taken or used without fraud or 
collusion by any person who in good faith paid the officers or agents of the 
United States for same, or for an alleged conspiracy in relation thereto. 

Act of June 4, 1888 (25 Stat., 166), provides as follows: "That section fifty-three 
hundred and eighty-eight of the Revised Statutes of the United States be 
amended so as to read as follows: 'Every person who unlawfully cuts, or aids or 
is employed in unlawfully cutting, or wantonly destroys or procures to be wan- 
tonly destroyed, any timber standing upon the land of the United States which, 
in pursuance of law, may be reserved or purchased for military or other purposes, 
or upon any Indian reservation, or lands belonging to or occupied by any tribe 
of Indians under autliority of the United States, shall pay a fine of not more than 
five hundred dollars or be imprisoned not more than twelve months, or both, 
in the discretion of the court.' " 

Act of February 16, 1889 (25 Stat., 673), provides that the President may authorize 
the Indians residing on reservations or allotments, the fee to which remains in 
the United States, to fell, remove, and dispose of the dead or down timber thereon 
for the sole benefit of the Indians. 

It is further provided that whenever there is cause to believe that the timber 
has been killed or otherwise injured for the purpose of securing its sale under 
this act such authority shall not be granted. 

Act of March 3, 1891 (26 Stat., 1093), entitled "An act to amend section eight of an 
act approved March third, eighteen hundred and ninety-one," etc., provides that 
"in the States of Colorado, Montana, Idaho, North Dakota, and South Dakota, 
Wyoming, and the District of Alaska, and the gold and silver regions of Nevada 
and the Territory of Utah, in any criminal prosecution or civil action by the 
United States for a trespass on such public timber lands, or to recover timber or 
lumber cut thereon, it shall be a defense if the defendant shall show that the said 
timber was so cut or removed from the timber lands for use in such State or Ter- 
ritory by a resident thereof for agricultural, mining, manufacturing, or domestic 
purposes, under rules and regulations made and prescribed l)y the Secretary of 
the Interior, ami has not been transported out of the same; but nothing herein 
contained shall operate to enlarge the rights of any railway company to cut 
timber on the public domain, provided that the Secretary of the Interior may 
make suitable rules and regulations to carry out the provisions of this act, and 
he may designate the' sections or tracts of land where timber may be cut, and it 
shall not be lawful to cut or remove any timber except as may be prescribed 
by such rules and regulations; but this act shall not operate to repeal the act 
of June third, eighteen hundred and seventy-eight, providing for the cutting of 
timber on mineral lands." 

(See below act of February 13, 1893 (27 Stat., 444), extending this act to New 
Mexico and Arizona, and act of March 3, 1901 (31 Stat., 1436), extending the 
act to California, Oregon, and Washington. ) 

Section 24 of the act of March 3, 1891 (26 Stat., 1095), provides for the establishment 
of forest reservations in any State or Territory having public lands bearing 
forests. 

(See below act of June 4, 1897 (30 Stat., 34-36), providing for the administra- 
tion of forest reserves created under this section. ) 

Act of August 4, 1892 (27 Stat., 348), extends the provisions of the act of June 3, 1878 
(20 Stat., 89), to all the public-land States. 



8 Synopsis of Laws. 

Act of February 13, 1893 (27 Stat., 444), extends the provisions of tne act of March 
3, 1891 (26 Stat., 1093), to inchide the Territories of New Mexico and Arizona. 

Act of January 19, 1895 (28 Stat., 634), provides for the utiUzation of burned timber 
on certain unperfected liomestead entries in Wisconsin, Minnesota and Michigan. 

Section 2 of the act of February 20, 1896 (29 Stat., 11) , to open certain forest reserva- 
tions in the State of Colorado for the location of mining claims, authorizes the 
owners of such claims to fell and remove timber therefrom for actual mining 
purposes in connection with the particular claim from which the timber is felled 
or removed, but prohibits the felling or removing of timber from any other por- 
tions of said reservations by private parties for any purpose whatever. 

Act of February 26, 1897 (29 Stat., 599), entitled "An act concerning certain home- 
stead lands in Florida," provides " that all persons actually occupying homesteads 
in good faith in any of the follow^ing-named counties in said State of Florida, 
to wit, Alachua, Lafayette, Levy, Suwanee, Bradford, Baker, and Columbia, at 
the time of the storm on or about September twenty-ninth, eighteen hundred 
and ninety-six, are hereby granted the right to sell or otherwise dispose of the 
fallen timber on their homestead entries felled by said storm, and to devote the 
proceeds of such sale or barter to the improvement of their homesteads or sup- 
port of themselves or their families." 

Act of June 4, 1897 (30 Stat., 34-36), provides for the survey of the public lands 
which have been or which may be designated as forest reserves under section 
24 of the act of March 3, 1891 (26 Stat., 1095), and for the control and admin- 
istration of such reserves. 

Act of June 7, 1897 (30 Stat., 90), provides that the Secretary of the Interior may 
authorize the Indians residing on any Indian reservation in the State of Minne- 
sota to fell, cut, remove, sell, or otherwise dispose of the dead timber on such 
reservation, or any part thereof, for the sole benefit of such Indians; also that he 
may authorize the Chippewa Indians of Minnesota who have any interest or 
right in the proceeds derived from the sales of ceded Indian lands or the timber 
growing thereon, whereof the fee is still in the United States, to fell, cut, 
remove, sell, or otherwise dispose of the dead timber on such ceded land. 

It is further provided that when there is reason to believe that the timber has 
been killed or otherwise injured for the jiurpose of securing its sale under this 
act the authority shall not be granted. 

Act of May 14, 1898 (30 Stat., 409), section 2, grants to any duly organized railroad 
company the right of way through the lands of the LTnited States iji the district 
of Alaska upon compliance with certain conditions, and also "the right to take 
from the lands of the United States, adjacent to the line of said road, material, 
earth, stone, and timber necessary for the construction of said railroad." Section 
6 authorizes the Secretary of the Interior to issue a permit, subject to certain 
restrictions and conditions, to any responsible person, company, or corporation, 
for a right of way over the public domain in Alaska, to construct wagon roads 
and tramways, and "the privilege of taking all necesssary material from the 
public domain in said district for the construction of said wagon roads and tram- 
ways," etc. Section 11 authorizes the Secretary of the Interior to cause to be 
appraised the timber, or any part thereof, upon the public lands of Alaska, and 
from time to time to sell so much thereof as he may deem proper, at not less 
than the appraised value, in such quantities to each purchaser as he shall pre- 
scribe, to be used in the district of Alaska, but not for export therefrom, such 
sales to be limited to actual necessities for consumption in the district from year 
to year. 

It is also provided that the Secretary of the Interior may pernait, under regu- 
lations to be prescribed by him, the u.se of timlter found upon the public lands 
in Alaska, by actual settlers, residents, individual miners, and jjrospectors for 
minerals, for firewood, fencing, buildings, mining, prospecting, and for domestic 
purposes, as may actually be needed by such persons for such purposes. 



Synopsis of Laws. 9 

Act of July 1, 1898 (30 Stat., 593), grants the right to cut timber for mining and 
domestic purposes at such prices, and subject to such regulations, as may be pre- 
scribed by the Secretary of the Interior, from that portion of the Colville Indian 
Reservation in the State of Washington which was vacated and restored to the 
public domain by the act of July 1, 1892 (27 Stat., 62), the net proceeds to be 
set apart and disposed of according to tlie provisions of section 2 of said act. 

Act of July 1, 1898 (30 Stat., 618), provides "that section eight of an act entitled 
'An act to repeal the timber-culture laws, and for other purposes,' approved 
March third, eighteen hundred and ninety-one, be, and the same is hereby, 
amended as follows: 'That it shall be lawful for the Secretarj' of the Interior to 
grant permits, under the ])rovisions of the eighth section of the act of March 
third, eighteen hundred and ninety-one, to citizens of Idalio and Wyoming, to 
cut timber in the State of Wyoming west of the Continental Divide, on the Snake 
River and its tributaries, to the boundary lines of Idaho for agricultural, mining, 
or other domestic purposes, and to remove the timber so cut to the State of 
Idaho.'" 

Act of May 5, 1900 (31 Stat., 169), provides " that an act entitled 'An act to pre- 
vent fires on the public domain,' approved February twenty-fourth, eighteen 
hundred and ninety-seven, be, and tlie same is hereby, amended so as to read as 
follows: ' That any person who shall willfully or maliciously set on fire, or cause 
to be set on fire, any timber, underbrush, or grass upon the public domain, or 
shall leave or suffer fire to burn unattended near any timber or other inflamma- 
ble material, shall be deemed guilty of a misdemeanor, and upon conviction 
thereof in any district court of the United States having jurisdiction of the same 
shall be fined in a sum not more than five thousand dollars, or be imprisoned 
for a term of not more than two years, or both. 

" ' Sec. 2. That any person who shall build a fire in or near any forest, timber, 
or other inflammable material upon the public domain shall, before leaving said 
fire, totally extinguish the same. Any person failing to do so shall be deemed 
guilty of a misdemeanor, and upon conviction thereof in any district court in the 
United States having jurisdiction of the same shall be fined in a sum not more 
than one thousand dollars or be imprisoned for a term of not more than one year, 
or both. 

" 'Sec. 3. That in a"ll cases arising under this act the fines collected shall be 
paid into the public-school fund of the county in which the lands wliere the 
offense was committed are situated.' " 

Act of March 3, 1901 (31 Stat, 1436), provides "that section eight of the act enti- 
tled 'An act to repeal timber-culture laws, and for other purposes,' approved 
March third, eighteen hundred and ninety-one, as amended by an act approved 
March third, eighteen hundred and ninety-one, chapter five hundred and fifty- 
nine, page ten hundred and ninety-three, volume twenty-six. United States 
Statutes at Large, be, and the same is hereby, amended as follows: After the 
word 'Nevada,' in said amended act, insert the words 'California, Oregon, and 
Washington.'" 

Act of IMarch 3, 1901 (31 Stat., 1439), provides "that the provisions of chapter five 
hundred and fifty-nine of the Revised Statutes of the United States, approved 
March third, eighteen hundred and ninety-one, limiting the use of timber taken 
from public lands to residents of the State in which such timber is found, for use 
within said State, shall not apply to the south slope of Pryor jMountains, in the 
State of Montana, lying south of the Crow Reservation, west of the Big Horn 
River, and east of Sage Creek; but within the above-described boundaries the 
provisions of said chapter shall apply equally to the residents of the States of 
Wyoming and Montana, and to the use of timber taken from the above-described 
tract in either of the above-named States. 



10 Synopsis of Za/ios. 

RECAPITULATION. 

ACTS FOR THE PROTECTION AND PRESERVATION OF PUBLIC TIMBER. 

Sections 2458 and 2459, U. S. R. S. Authorize the selection and reservation of pubHc 

lands containing live-oak or red-cedar timber for the sole purpose of supplying 

timber for the Navy of the United States. 
Section 2460, U. S. R. S. Authorizing use of Army and Navy to prevent timber 

depredations in Florida. 
Section 2461, U. S. R. S. Prohibiting the cutting of timber from any public lands for 

any purpose whatever, except for the use of the Navy of the United States. 
Section 2462, U. S. R. S. Providing penalties for transporting or exporting any tim- 
ber cut from any public lands not reserved or purchased for furnishing timber 

for the Navy. 
Sections 2463 and 4205, U. S. R. S. Providing that collectors of customs in Alabama, 

Florida, Louisiana, and Mississippi must see to it that no live-oak timber is trans- 
ported or exported out of said States. 
Section 4751, U. S. R. S. Providing relative to recovery and disposition of penalties 

and forfeitures under sections 2461, 2462, and 2463. 
Section 5388, U. S. R. S. Prohibiting the cutting or destroying of timber on reserved 

lands. (Amended by act of June 4, 1888; 25 Stat., 166. ) 
Act of March 3, 1875 (18 Stat., 481). Prohibiting the cutting, destroying, or injuring 

of any trees on reserved lands. 
Act of April 30, 1878, section 2 (20 Stat., 46). Providing that if any timber cut on 

the public lands shall be exported from tlie Territories of the United States it 

shall be liable to seizure by United States authority wherever found. 
A(;t of June 3, 1878, section 4 (20 Stat., 89). Prohibiting the cutting of timber in 

California, Oregon, Nevada, or Washington for export, disjiosal, or transportation. 
This act is made applicable to all the public-land States by the act of August 

4, 1892 (27 Stat., 348). 
Act of June 4, 1888 (25 Stat., 166). Prohibiting the cutting of timber on lands 

reserved for military or other purposes, or on Indian reservations, etc. 
Act of March 3, 1891 (26 Stat., 1095). Authorizing the President of the United 

States to make forest reservations. 
Act of August 4, 1892 (27 Stat., 348). Extending the provisions of the act of June 3, 

1878 (20 Stat., 89), to all the public-land States. 
Act of February 20, 1896 (29 Stat., 11). Opening certain forest reservations in the 

State of Colorado for the location of mining claims. 
Act of June 4, 1897 (30 Stat., 34-36). Provides for the survey, government, and 

protection of forest reserves created under authority of the act of March 3, 1891 

(26 Stat., 1095). 
Act of May 5, 1900 (31 Stat., 169). To prevent forest fires on the public domain. 

ACTS AUTHORIZING THE USE OF PUBLIC TIMBER. 

Section 5264, U. S. R. S. Providing for the use of public timber by telegraph 

companies. 
Act of March 3, 1875 (18 Stat., 482). Authorizing right-of-way railroads to procure 

timber from public lands for construction jiurposes. 
The several acts making land grants to railroad companies. 
Act of June 3, 1878 (20 Stat., 88). Authorizing the cutting of timber from public 

mineral lands in Colorado, Nevada, New Mexico, Arizona, Utah, Wyoming, 

Dakota, Idaho, and Montana for domestic purposes. 
Act of June 3, 1878 (20 Stat., 89). Authorizing the sale of public timber lands in 

California, Oregon, Nevada, and Washington, and the cutting of timber by miners 

and agriculturists for use on their claims, and the taking of timber for the use of 

the United States. 



Synopsis of Laws. 1 1 

This act, by the act of August 4, 1892 (27 Stat., 348), is extended to all the 
public-land States. (See below.) 

Act of February 16, 1889 (25 Stat., 673) . Authorizing Indians on reservations to cut, 
remove, and dispose of dead and down timber. 

Act of March 3, 1891 (26 Stat, 1093). Authorizing the cutting of timber in Colorado, 
Montana, Idaho, North Dakota, South Dakota, Wyoming, Alaska, Nevada, and 
Utah for agricultural, mining, manufacturing, or domestic purposes. 

The act of February 13, 1893 (27 Stat., 444), extends the operation of this act 
to New Mexico and Arizona, and the act of March 3, 1901 (31 Stat., 1436), 
extends its operation to California, Oregon, and Washington. (See below.) 

Act of August 4, 1892 (27 Stat., 348). Extending the provisions of the act of June 
3, 1878 (20 Stat., 89), to all the public-land States. 

Act of February 13, 1893 (27 Stat., 444). Extending the provisions of tlie act of 
March 3, 1891 (26 Stat., 1093), to include the Territories of New Mexico and 
Arizona. 

Act of January 19, 1895 (28 Stat., 634). Providing for the utilization of burned 
timber on certain unperfected homestead entries in AVisconsin, Minnesota, and 
Michigan. 

Act of February 20, 1896 (29 Stat., 11). Opening certain forest reservations in the 
State of Colorado for the location of mining claims. 

Act of Feljruary 26, 1897 (29 Stat., 599). Providing for the utilization of certain 
felled timljer on unperfected homestead entries in certain counties in Florida. 

Act of June 7, 1897 (30 Stat., 90). Providing for the sale of dead timber on the 
ceded Chippewa Indian Reservation in Minnesota. 

Act of May 14, 1898 (30 Stat., 409), sections 2 and 6. Authorizing right-of-way rail- 
roads and wagon roads and tramways in Alaska to take timber, etc. , for construc- 
tion purposes; and section 11, providing for the sale and the free use of timber 
in Alaska. 

Act of July 1, 1898 (30 Stat., 593). Authorizes the sale of timber from the north 
half of the Colville Indian Reservation, in the State of Washington, under regu- 
lations to be prescribed l^y the Secretary of the Interior. 

Act of July 1, 1898 (30 Stat., 618). Authorizes the Secretary of the Interior to grant 
permits to citizens of Idaho and Wyoming to cut timber in Wyoming west of the 
continental divide on the Snake River and its tributaries, for agricultural, min- 
ing, or other domestic purposes, and to remove such timber to the State of Idaho. 

Act of March 3, 1901 (31 Stat., 1436). Extends to residents of California, Oregon, 
and Washington the privilege of taking timber from public lands in said States 
under the act of March 3, 1891 (26 Stat., 1093). 

Act of March 3, 1901 (31 Stat., 1439). Extends to citizens of Montana and Wyoming 
the privilege of taking timber under the provisions of the act of March 3, 1891 
(26 Stat., 1093), from the tract specified in Montana for use in either of said 
States. 

In addition to the above specific legislation in respect to timber on i^ublic 
lands the inceptive rights acquired by a homestead claimant are held to extend 
to the use of so much timber as it may be necessary to fell or remove in clearing 
the land for cultivation, or for buildings, fences, or other improvements on the 
land. See United States v. Levi W. Nelson (5 Sawyer, 68), cited on page 115; 
also Shiver v. United States (159 U. S., 491), cited on page 122. 

SUMMARY. 

The foregoing synopsis shows that section 2461, U. S. R. S. (act of March 2, 
1831; 4 Stat., 472), constitutes the original policy respecting public timber, and 
the extent to which certain of the subsequent acts operate as modifications of 
same. 



COMPILATION^ OF PUBLIC TIMBER LAWS Ml) REGU- 
LATIONS AND DECISIONS THEREUNDER. 



SECTION 2461, U. S. R. S. 

(Act of March 2, 1831; 4 Stat., 472.) 

If any person shall cut, or cause or procure to be cut, or aid, assist, 
or be emplo3^ed in cutting, or shall wantonly destroy, or cause or j)rocure 
to be wantonly destroyed, or aid, assist, or be employed in wantonly 
destroying any live-oak or red-cedar trees, or other timber standing, 
growing, or being on any lands of the United States, which, in pur- 
suance of an}' law passed, or hereafter to be passed, have been reserved 
or purchased for the use of the United States, for supplying or furnish- 
ing therefrom timber for the Navy of the United States; or if an}^ 
person shall remove, or cause or procure to be removed, or aid, or 
assist, or be employed in removing from any such lands which have 
been reserved or purchased, any live-oak or red-cedar trees, or other 
timber, unless dul}' authorized so to do, by order, in writing, of a 
competent officer, and for the use of the Navy of the United States; 
or if any person shall cut, or cause or procure to be cut, or aid, or assist 
or be emploj^ed in cutting any live-oak or red-cedar trees, or other 
timber on, or shall remove, or cause or procure to be removed, or aid 
or assist, or be emplo3'ed in removing an}' live-oak or red -cedar trees 
or other timber from any other lands of the United States, acquired, 
or hereafter to be acquired, with intent to export, dispose of, use, or 
emplo}' the same in an}^ manner whatsoever, other than for the use of 
the Navy of the United States; every such person shall pay a fine not 
less than triple the value of the trees or timber so cut, destroyed, or 
removed, and shall be imprisoned not exceeding twelve months. (See 
sec. 4751.) 

TIMBER DEFINED. . 

United States v. Stores and Another. 

Circuit court, southern district of Florida (14 Fed. Rep., 824). 

Penalty — Cutting Timber on Public Lands — "Timber" Defined. 

The term "timber," as used in section 2461, Revised Statutes, does not apply 
alone to large trees fitted for house or ship building, but includes trees of any 
size, of a character or sort that may be used in any kind of manufacture or the 
construction of any article. 

13 



14 Section '21^.61, Reolmd Siututes. 

Penalty — Prosecution for — Use op Trees no Justification. 

Using trees for firewood or burning into charcoal is no justification of the 
cutting. 
Same — Homestead Entry — No Effect on Title. 

A homestead entry works no change in the title of lands which can prevent a 
prosecution under the said se(;tion. 

United States v. Peter Darton. 

C'in-uit ('ourt of the United States (6 McLean, 46). 

Under the act of 1831, for the punishment of offenses in cutting and removing timber 
from the United States l^nds, the rule of proof is fixed by the statute. The 
Government must prove the cutting on the lands specified; the defendant may 
rebut the same by showing circumstances of ignorance as to the section lines or 
mistake. 

The proof must correspond with the charge — cutting oak is not cutting pine timber. 

The proof of the act places the Vnirden of explanation on the defendant. From an 
unlawful act an unlawful intent will be inferred. 

A reasonable doubt is that which relates either to the character or the force of the 
testimony, and not a mere conjecture. 

WiLKINS, J.: 

The defendant was tried on an indictment charging- him with remov- 
ing and cutting- timber on Government lands. The te.stimon}^ showed 
that his father owned a mill seat and various tracts of land in the 
vicinage of the lands described in the indictment; that he resided at 
the mill, as the agent of his father who lived in Chicago, and was 
under instructions to avoid cutting on the Government lands; that a 
number of trees were cut by mistake across the lines, which were sub- 
sequently ascertained by actual survey, the defendant accompanying 
the surveyor and showing the corner posts; and when he ascertained 
that he had cut over his lines he wrote to his father and caused the 
quarter section on which the timber was cut to be entered at the Land 
Office, the certificate of which was given in evidence. 

It was contended on the part of the government — 

First. That circumstances showing ignorance and mistake, if believed 
by the jury, constituted no defense. 

Second. That a suhseijuent entr}^ of the lands was no defense. 

CHARGE OF THE COURT. 

The prisoner at the bar, Peter Darton, whose true deliverance l)etween 
him and the United States you are obligated b}' j^our solemn oaths to 
make, according to the evidence given you in court, is charged with 
timber cutting and timber removing on and from the lands of the 
United States. The peculiar offense is created by and defined and 
described in the statutes of the United States. 

The act of March 2, 1831, by its second section, constitutes three 
general classes of offenses, with their respective accessorial subdivi- 
sions. 



Section 'BJ^Bl^ Revised Statutes. 15 

The court will enumerate them in their order, that you may be better 
enabled to understand the particular oti'ense now under consideration. 

The first is the cutting and removing naval timber, specifically named 
red cedar and lire oak, on lands especialh" selected and reserved b}^ the 
Government, or aiding in such acts, or wantonly destroying on such 
lands such naval timber. 

By a previous enactment of Congress, the 1st of March, 1817, entitled 
"An act," making reservation of certain public lands "to supply timber 
for naval purposes," it was made the duty of the Secretar}^ of the Navy, 
under the direction of the President of the United States, to cause such 
vacant and unappropriated pul)lic lands as produced the live-oak and 
red-cedar timbers to be explored and to select such tracts as, according 
to his judgment, were necessary to furnish the Nav}^ of the United 
States a sufficient supply of naval timber. 

It was then declared an offense, punishable by fine and imprison- 
ment, for any person to cut any timber on such reserved tracts tvithout 
authority to do so hy order of a competent officer. 

At the same time it was declared criminal to cut or remove, or be 
employed in removing, the naval timber specified, with intent to dis- 
pose of the same for transportation, from the same description of the 
public lands. 

Such, with other measures of a penal character, and with the avowed 
design of preserving a supply of timber for the United vStates Navy, 
were the salutary provisions of the statute of 1S17. 

But the Government Avas the proprietor of other lands, on which 
grew other timber, valuable in a great degree for other purposes than 
shipl)uilding. Much of these lands were surveyed by and under 
national authorit}^, and b}^ various statutory enactments were opened 
to settlements, and offered at a Jr. red price, which could neither be 
augmented nor lessened by demand. 

The policy of these statutes was twofold: First, the speedy settle- 
ment of the public domain, and thereby converting the wilderness into 
a garden; and the acquisition of a reAcnue from the public sales. In 
furtherance of both objects it was desirable that the lands should be 
so far protected from spoliation as to encourage immigration and induce 
settlement and sale. 

Moreover, it was discovered that the protection afforded b}^ the act 
of 1817 was not sufficiently extensive as to naval timber growing else- 
where than on the reservations; and the public lands in the North 
and Southwest, being repeatedly stripped of valuable house timber by 
lawless trespassers, the National Legislature was moved to amend and 
enlarge the provisions of the act of 1817 by those of 1831, embracing 
other' lands than the reserved lands, naval timber on other lands, and 
other timber than naval timber on the unreserved public lands of the 
United States. Thus originated the other two classes as designated 
in the first section of the last act, namel}": 

Second. The offense of cutting naval timber on other lands, etc. 



16 Section '21fil^ Revked Statutes. 

Third. The offense of cutting or removing, etc., other timber than 
naval timber on other lands than naval lands, with the intent to export., 
dispose of, use, or employ the same m any manner whatsoever., other 
than for the use of the Navy of the United States. 

This last comprehends the charges set forth in this indictment, 
which contains four counts. 

******* 

Before any application of the law to the facts of this case the court 
will briefly detain your attention on two prominent propositions 
involved: 

First. What must be proved by the Government in order to sustain 
the prosecution. 

Second. What must be proved by the defendant, in case the Gov- 
ernment has made a case to warrant a conviction, as matter of com- 
plete exculpation. 

What must be proved by the Government. The rule of proof is 
fixed by the statute. The offense is cutting or removing timber from 
Government lands, with the evil intent described. 

The fact then must be fully established by conclusive proof that 
timber of the kind described was cut by the defendant or b}^ his pro- 
curement, and that the same was cut on the township and section and 
range specially set forth. Cutting other timber than that charged will 
not suffice. If pine trees or pine logs are charged, proof of oak or 
hickory will not do. And so also, if the cutting is on other lands the 
proof will not do. The defendant must be acquitted. 

But, gentlemen, if the specific act of cutting or removing is proved, 
the guilty — the unlawful intent — will be presumed. From an unlaw- 
ful act an unlawful intent will be inferred. The statute declares the 
act criminal. Proof of the commission of the act raises the presump- 
tion of a guilty knowledge and a guilty intention. * * * 

But this presumption may be rebutted by the evidence of circum- 
stances showing a lawful intention. * * * An evil intent is an 
essential ingredient oi every crime. And the statute does not con- 
template the punishment of the innocent. An unlawful act with a 
lawful intention is not criminal. 

* * * Understand this: The Government must prove two prom- 
inent facts — the cutting and the premises vUiere cut. If such proof 
corresponds with the allegations of the indictment, and there is no 
explanatory proof rebutting an unlawful intention, your verdict must 
be guilt3\ 

But otherwise, after such proof on the part of the Government, if 
the defendant clearl}' shows that a mistake was committed b}'^ the 
defendant himself, or by the hands under his direction, in regard to 
the lines of survey. * * * 

******* 



Section ^^61, Revised Statutes — Mesquite. 17 

Now, the United States, as a great land proprietor, is not inhibited 
the usual civil remed}'^ allowed to and provided for all for any loss or 
injury sustained. The courts of justice are open to the civil actions 
of the Government as to those of an individual. But there is a vast 
difference in the rule of judgment between the civil action and the 
criminal verdict. In the former, the proof of the injury and its 
extent calls justly for the rendition of appropriate damages, and the 
plea of ignorance or mistake or an innocent intention availeth not. 
The injury is done; the ignorant trespasser must repair the loss. So 
with the Government. Its landed dominion is under the protection 
of the general law, independent of the statute of 1831. The action of 
trespass is an action to which the Government may resort, and under 
which it may recover damages to the full extent of the injur}-^ 
sustained. 

And a conviction and punishment of a defendant for a trespass, 
under the act of 1831, would not protect, under a civil action, for the 
injury sustained. Neither would a judgment, on the latter remedy, 
be a sufficient plea of defense under the indictment. 

•X- -X- » 

The jury found a verdict of guilty. 

United States v. Rafael Soto. 

Supreme court, Territory of Arizona (64 Pao. Rep., 419). 

1. Under E,. S. U. 8., 2461, declaring that any person who cuts live oak or red cedar 

trees "or other timber " on any lands of the United States with intent to use the 
same in any manner other than for the use of the United States Navy, shall be 
punished, etc., it was not intended to confine the protection to timber of size 
and kind adapted to house or ship building. 

2. Under R. S. U. S., 2461, providing that any person who cuts any live oak or red 

cedar "or other timber" from any lands of the United States with intent to use 
the same in any manner other than for the use of the United States Navy shall 
be punished, etc., it was error to sustain a demurrer to an indictment charging 
defendant with cutting mesquite trees on the ground tliat the mesquite tree is 
not timber within the meaning of the statute, since some mesquite timber is fit 
materia] for some constructive uses; and therefore the question as to whether or 
not that cut by defendant was such " timber " was a question for the jury, and 
not to be decided on demurrer. 

Opinion by Davis, J.: This is a criminal case, and the appeal is 
taken by the Government on a question of law alone which was decided 
adversely to the appellant in the court below. The prosecution was 
founded upon section 2461, R. S. U. S., which declares that "if any 
person shall cut, or cause or procure to be cut, or aid or assist or be 
employed in cutting, any live oak or red cedar trees or other timber on, 
or shall remove or cause or procure to be removed, or aid or assist or 
be employed in removing, any live oak or red cedar trees or other 
21150—03 2 



1 8 Section 2Jt61^ Mevlsed Statute-s — Mesquite. 

timber from an}^ * * * lands of the United States ■'• "■ * 
with intent to export, dispose of, use, or emplo} the same in any 
manner whatsoever other than for the use of the Navy of the United 
States, every such person shall pay a fine of not less than triple the 
value of the trees or timber so cut, destroyed, or removed, and shall 
be imprisoned not exceeding twelve months/"' After the usual juris- 
dictional and necessary averments, the indictment charged "that the 
said Rafael Soto, within and upon the public unsurveyed lands of the 
United States, and upon the lands known and designated as the Camp 
McDowell Military Reservation, did unlawfully, willfully, and wrong- 
fully cut, cause to be cut, remove and cause to be removed therefrom 
mesquite trees and mesquite timber, to wit, five hundred mesquite 
trees of the value of two hundred and fifty dollars lawful money of 
the United States, with the intent then and there to use and dispose 
of the same in a manner other than for the use of the United States 
Navy.'' The defendant demurred to the indictment on the ground 
that the facts stated did not constitute a pul)lic ofl'ense, relying upon 
the former adjudication of this court in Bustamente v. United States 
(42 Pac, 111), wherein it was distinct!}^ |held that "mesquite is not 
'timber' within the meaning of said section 2401."" The district 
court, following the authority of that decision, sustained the demur- 
rer and ordered that judgment be entered dismissing said cause and 
discharging the defendant. 

Counsel for the Government have brought this appeal upon the 
theory that there is manifest error in the ruling and judgment of the 
lower court, and that the correction thereof is important to the proper 
and uniform administration of the criminal law. We are asked to 
review the holding in Bustamente v. United States, supra, as that case 
involved the same questions which are here again presented for our 
consideration. These are: 

1. Is mesquite timber or not within the meaning of section 2401, 
R. S. U. S. ? 

2. Can the question of whether mesquite is timber or not be properly 
determined upon denmrrer to an indictment charging the unlawful 
cutting of mesquite on the public domain? The term "timber" in its 
earlier signification was applied chiefly to wood of the larger dimen- 
sions used in the building of houses and ships, but the general use of 
all kinds of forest trees for constructive purposes has given to the 
term a less restricted meaning. Webster defines "timber" to be "that 
sort of wood which is proper for buildings or for tools, utensils, 
furniture, carriages, fences, ships, and the like — usually said of felled 
trees, but sometimes of those standing." In this sense it would 
include all kinds of wood used either for building purposes or in the 
manufacture or construction of useful articles. The language of the 
section und^* which the indictment was drawn mentions particularly 



Section '21fil^ Revised Statutes — Mesquite. 1*^ 

live oak and red cedar trees, and then refers to other timber, showing 
conclusively that it was not the intention of Congress to confine the 
protection extended to any particular class or kind of trees, but to 
apply it in its most general sense. And this interpretation is in accord 
with the use of the word "timber'' in other enactments of Congress 
at places where its obvious meaning absolutel3^ precludes the idea that 
the term Avas intended to be confined to trees or wood of such kinds 
and sizes as would be especiall}^ adapted to house or ship building. 
(United States v. Stores, 14 Fed., 824.) It is to be observed that in 
Bustamente v. United States, supra, this court conceded to the term its 
broader signification, but upon what was assumed to be common 
knowledge proceeded to characterize the mesquite as "a brittle, 
knotty, skraggy, fiberless, gnarled Avood that can onl}^ be used for 
firewood. It is used in the manufacture of no useful article. It only 
inhabits the desert. * '^ * Neither a ship carpenter, molder, 
cabinetmaker, last maker, carriage builder, nor any other kind of 
woodworker would include mesquite in their several classifications of 
timber,'' From which the court in that case reached the conclusion 
that Congress did not intend to include it in the term "timber" when 
it passed this law. And for the reason that mesquite was not timber, 
within the meaning of the law, it was ruled that the demurrer to the 
indictment should have been sustained. If the wood in question is 
accurately distinguished by the description given to it by the learned 
judge who wrote the prevailing opinion in the Bustamente case, and 
the characteristics therein mentioned are commonly known and recog- 
nized, then doubtless his conclusion is correct. But investigation into 
the various growths, character, and known uses of the mesquite tree 
will not, we believe, warrant the sharply defined limitation which the 
court from judicial knowledge has placed upon its utility. From the 
Centur}" Dictionary we obtain the following definition: 

Mesquite. An important leguminous tree, or often shrub, Prosopis juliflora, grow- 
ing from Texas to southern California, and thence southward to Chile. It reaches a 
height of 30 or 40 feet, but is often scrubby, forming dense clumps of chaparral. 
Under the action of prairie fires it is reduced to a low shrub, developing then an 
enormous mass of roots — locally known as underground forest — of great value as 
fuel. The wood is heavy and very hard, almost indestructible in contact with the 
ground; it is used for the beams and underpinnings of adobe houses, for posts and 
fencing, for fuel, and for furniture. It is of a brown or red color, handsome when 
polished, but difficult to work. 

For the region of Arizona the mesquite, to a considerable extent, ful- 
fills the functions of a forest tree. Although used chiefly for fuel, its 
value for constructive purposes has also been recognized, and the use 
of mesquite of larger growth in the construction of buildings and 
fences here is sufficiently common to make it a matter of general 
knowledge. We hold, therefore, that in prosecutions under the fore- 
going statute the question of whether or not mesquite is timber must 



20 Section HJ^dl^ Revined Statutes — Criminal Liability. 

necessarily be one of fact, dependent upon the character of the wood 
charged and shown to have been cut or removed in each particular 
case, and that in the case at bar it was not a question which could 
properly be determined upon a demurrer to the indictment. This 
view leads to the disapproval of the law as declared in Bustamente v. 
United States, supra, and it also follows that there is error in the 
ruling and judgment of the lower court. But as that judgment in this 
case operates as a bar to another prosecution for the same offense the 
statute prevents its reversal. 

LIABILITY. 

(CRIMINAL LIABILITY. 

The penal act of March 2, 1831, 4 Stat. , 472 (section 2461, U. S. R. S.), 
provides ""for the punishment of offenses committed in cutting, 
destroying, or removing live oak and other timber or trees reserved 
for naval purposes." 

This act of March 2, 1831, was fully considered in the case of The 
United States v. Ephraim Briggs (9 Howard, 351), in which the 
Supreme Court decided that the said act authorized the prosecution 
and punishment of all trespassers on public lands by cutting timber, 
whether such timber was fit for naval purposes or not. 

The United States -v. Ephraim Briggs. 
(9 Howard, 351.) 

On the 2d of March, 1831, Congress passed an act (4 Stat., 472), entitled "An act to 
provide for the punishment of offenses committed in cutting, destroying, or 
removing live oak or other timber or trees reserved for naval purposes." 

The act itself declares that every person who shall remove, etc., any live oak or red 
cedar trees or other timber from any other lands of the United States shall be 
punished by fine and imprisonment. 

The title of the act would indicate that timber removed for naval purposes was 
meant to be protected by this mode and none other. But the enacting clause is 
general, and therefore cutting and using of oak and hickory or any other 
description of timber trees from the public lands is indictable and punishable 
by fine and imprisonment. 

See also decision in case of Forsyth v. United States (9 Howard, 571). 
The United States v. Redy. 

United States circuit court (5 McLean, 358). 

Under the act of Congress, it is not necessary to describe, in an indictment for tres- 
pass on the public lands, every kind of timber that was cut. 

It is sufficient to name one or more species and in the words of the statute allege 
other timbers. 

An indictment will lie for cutting timber on any of the public lands, though it may 
not have been reserved for naval purposes. 



Criminal Liability — Negligence. 21 

OPINION OF THE COURT, 

This is an indictment for cutting walnut and other trees on the public 
lands of the United States. It was objected that no other timber except 
what is named in the indictment can be proved. But the court held 
that, under the allegation of other timber, proof other than walnut trees 
was admissible to the jury. 

An objection was also made, that an indictment would not lie for a 
trespass on the public lands unless such lands had been reserved for 
naval purposes. But the court ruled an indictment could be sustained, 
under the decisions, for the cutting of timber on the public lands which 
had not been reserved for naval purposes. 

The court instructed the jury they must be satisfied that the person 
who cut the timber was employed by the defendant and that the tim- 
ber was cut by his direction. If this be proved, the defendant is 
answerable, under the law, the same as if the defendant had in person 
committed the trespass. 

The jury found the defendant not guilty. 

United States v. Thompson. 

In the circuit court of the United States (6 McLean, 56). 

Not necessary, in an indictment for cutting timber, to state the class of lands from 
which the trees were cut. 

Such a description as shows the accused the offense with whicli he is charged is 
sufficient. 

Where a statute creates an offense, and the indictment charges the same in the pre- 
cise words of the statute, it is unnecessary to prefix to the charging words the 
word "unlawful," or any other word showing a wrongful intention. 

United States v. Stone. 

District court, district of Idaho (49 Fed. Rep., 848). 

Public Lands — Timber Trespass. 

Criminal proceedings may be maintained under section 2461, U. S. R. S., for a 
violation of its provisions; and it is sufficient to allege in the indictment that 
the cutting and removing of the timber was for use other than that of the Navy 
of the LTnited States. It is not necessary to allege that defendant was not justi- 
fied under any of the various land laws of the United States. 
Same. 

Charging the "cutting and removing" of timber does not constitute the alle- 
gation of two offenses to one count. 

TRESPASS THROUGH NEGLIGENCE. 

In an action to recover a statutory penalty for the cutting of trees, 
defendant is liable for careless as well as willful cutting, and can not 
escape liability b}^ showing that he turned his servants into an unen- 
closed lot, with instructions to cut only his trees, without approxi- 
mately indicating to them the boundaries of his land. (United States 
Digest, Vol. XIV, 803; Keirn v. Warfield, 60 Miss., 799.) 



22 Criminal Liability- — Cioil Liahilitij. 

SECTION 2461, U. S. R. S., NOT REPEALED BY THE ACTS OF JUNE 3, 1818 
(20 STAT., 89), AND AUGUST 4, 1892 {27 STAT, 348). 

See Commissioner of the General Land Office to the Secretary of the 
Interior, May 16, 1896, cited on pa^e 105. 

CRIMINAL LIABILITY FOR PUBLIC TIMBER TRESPASS CAN NOT BE 

COMPROMISED. 

Department of Justice, 
Office of the Solicitor of the Treasury, 

Wdshingion, D. (?., Mareli 3, 1884. 

Sir: I have the honor to return herewith a communication addressed 
to you by the honorable Secretary of the Interior with its inclosures 
relating to the offer of W. S. Harrison to pay $50 in compromise of a 
criminal action pending in the northern judicial district of Florida, 
brought because of a trespass on the public lands. 
The papers were referred to this office the 25th ultimo. 
A criminal liability of this nature can not be compromised, and I 
have informed the United States attorney of this fact. * * * 
Very respectfully, 

J. H. Robinson, 
Acting Solicitor of the Treasury. 

Hon. Charles J. Folger, 

Secretary of the Treasury. 



CIVIL LIABILITY. 

UNITED STATES ENTITLED TO CIVIL REMEDIES. 

Attorney -General Wirt, in an opinion of the 27th of May, 1821, holds 
as follows: 

Independent of positive legislative provisions, I apprehend that, in relation to all 
property, real or personal, which the United States are authorized hy the Constitu- 
tion to \\o\d, they have all the civil remedies, whether for the prevention or redress 
of injuries, which individuals possess. (See3 Wheaton, 181.) So the United States, 
being authorized to accept and to hold these lands for the common good, must have 
all the legal means of protecting the property thus confided to them that individuals 
enjoy in like cases. * * * They are, therefore, in my opinion, entitled to the 
injunction of waste by way of prevention, and to the action of trespass by way of 
punishment, in like manner as individuals, similarly situated, are entitled to them. 

Attorne^^-General Taney, afterwards Chief Justice of the United 
States, in an opinion of 22d of August, 1833, cites this opinion of Mr. 
Wirt, and concurs in it. 



Civil Liahility — Remedy of Government. 23 

United States v. Lee. 

(106 IT. S., 222.) 

******* 

Another consideration is that since the United States can not be 

made a defendant to a suit concerning its property, and no judgment 

in any suit against an individual who has possession or control of such 

property can bind or conchide the Government, as is decided by this 

court in the case of Carr v. United States, already referred to, the 

Government is always at liberty, notwithstanding any such judgment, 

to avail itself of all the remedies which the law allows to every person, 

natural or artificial, for the vindication and assertion of its rights. 

* * * * ■ -x- * * 

RIGHT TO PURSUE AND RECLAIM PROPERTY. 

Justice demands, therefore, and the law concedes that the ow^ner of 
personal property may pursue and reclaim the chattel wherever he can 
find and identify it. (Schouler's Personal Property, vol. 2, p. 21.) 

Cotton ?'. Ignited States. 
(11 Howard, 229.) 

The United States have a right to bring an action of trespass quare danmin frcgit 
against a jaerson for cutting and carrying away trees from the public lands. 

This case was brought up, by writ of error, from the district court 
of the United States for the northern district of Florida. 

It was an action of trespass quare clausum /regit brought by the 
United States for cutting trees upon public lands, commenced in the 
superior court of West Florida in ISl-t, to which the defendant pleaded 
not guilty on the 20th of March, 1845. The cause remained pending 
in said court until the 15th of January, 1848, when, in pursuance of 
the act of the 22d February, 1817 (ch. 17, sec. 8), it was transferred to 
the United States district court for the northern district of Florida, 
and was ordered to stand for trial at the ensuing March term. 

At that term the defendant appeared, and on leave filed a demurrer 
to the declaration, which, after argument, was overruled, and the cause 
set down for trial on the plea of not guilty. 

The cause having come on, the defendant requested the court to 
charge the jury — 

First. That the only remedy for the United States for cutting pine 
timber on the public lands was by indictment. 

Second. That the United States have no common-law remedy for 
private wrongs. 

Third. That the right of the United States to bring this action umst 



24 Civil Liahility — Remedy of Government. 

be derived either from an act of Congress or from the law of some 
State in which the contract was made by which it acquired the property 
on which this trespass is alleged to have been committed. 

Fourth. These lands were acquired by treaty from Spain, and that 
the United States has no common-law remedy for trespass committed 
thereon; and that Congress not having authorized the exercise of this 
remed}^ the plaintiff ought not to recover any damages. 

Which charge the court refused to give, whereupon the defendant 
excepted. 

The jury found the defendant guilt}^ of the trespass, and assessed the 
damages of the United States at $362.50, for which amount, and $122.22 
costs, judgment was entered up. Amotion in arrest of judgment was 
overruled. 

The Supreme Court having at the last term decided that it had juris- 
diction in cases like this under the act of the 27t]i of Februar3% 18^7, 
without reference to the amount in controversy, the case now came 
before the court on the points raised by the bill of exceptions. (9 How. , 
579.) 

It was argued by Mr. Walker for the plaintiff in error and Mr. Crit- 
tenden (Attorney-General) for the United States. 

Mr. Crittenden. For the proper understanding of the points in the 
case, it is necessary to call the attention of the court to the act of the 
2d of March, 1831 (4 Stat., 472), which was before it at the last terrain 
the case of the United States v. Briggs (9 Howard, 351), in which it was 
decided that the cutting or procuring to be cut, removing or procuring 
to be removed, or aiding, or assisting, or being employed in the cutting 
of all descriptions of timber trees on the public lands, is an indictable 
offense under the said act and punishable l)y fine and imprisonment. 

No defense arising out of the passing of this act was pleaded either 
by way of abatement or specially. 

The United States have the same right as any other proprietor to sue 
for trespasses on the public lands, and that right is not merged or lost 
by such trespasses having been made an offense punishable by indict- 
ment under the act of 1831. (Dugan v. United States, 3 Wheat., 181; 
United States v. Gear, 3 Howard, 121; Manro v. Almeida, 10 Wheat., 
494; Cross 7'. Guthrie, 2 Root, Con. R., 90; Smith v. Weaver, 1 Taylor, 
58; Blassingame v. Glaves, 6 B. Monroe, 38; Foster v. The Common- 
wealth, 8 Watts and Serg., 77.) 

Mr. Justice Grier delivered the opinion of the court: 

This is an action of trespass quare clausuni f regit brought \>y the 
United States against Loftin Cotton, in which he is charged with cut- 
ting and carrying away a large number of pine and juniper trees from 
the lands of plaintiff. 

On the trial below, the counsel for defendant requested the court to 
instruct the jury: First, "that the only remedy for the United States 



Civil Liability — Remedy of Government. 25 

for cutting- pine timber on the public lands was by indictment." Sec- 
ond, ""that the United States have no common-law remedy for private 
wrongs." The refusal by the court to give these instructions is now 
alleged as error. 

Every sovereign State is of necessity a body politic, or artificial 
person, and as such capable of making contracts and holding property, 
both real and personal. It is true that in consequence of the peculiar 
distribution of the powers of government between the State and the 
United States, offenses against the latter, as a sovereign, are those only 
which are defined bj^ statute, while what are called common-law offenses 
are the subjects of punishment only by the States and Territories 
within whose jurisdiction they are committed. But the powers of the 
United States as a sovereign, dealing with ofl'enders agaiiist their laws, 
must not be confounded with their rights as a bod}^ politic. It would 
present a strange anomaly indeed, if, having the power to make con- 
tracts and hold property as other persons, natural or artificial, they 
were not entitled to the same remedies for their protection. The 
restraints of the Constitution upon their sovereign powers can not 
affect their civil rights. Although as a sovereign the United States 
may not be sued, yet as a corporation or body politic they may bring 
suits to enforce their contracts and protect their property in the State 
courts, or in their own tribunals administering the same laws. As an 
owner of property in almost every State of the I^nion, they have the 
same right to have it protected by the local laws that other persons 
have. As was said by this court in Dugan v. United States (3 Wheat., 
181), "it would be strange to deny them a right which is secured to every 
citizen of the United States." In the United States r. The Bank of 
the Metropolis (15 Peters, 392), it was decided that when the United 
States, by their authorized agents, become a party to negotia])le paper, 
they have all the rights and incur all the responsibilities of other per- 
sons who are parties to such instruments. In the United States v. 
Gear (3 Howard, 120), the right of the United States to maintain 
an action of trespass for taking ore from their lead mines was not 
questioned. 

Many trespasses are also public offenses by common law% or are 
made so b}^ statute, but the punishment of the public offense is no bar 
to the remedy for the private injury. The fact, therefore, that the 
defendant in this case might have been punished b}^ indictment as for 
a public offense is no defense against the present action. Whether, if 
he had actually been indicted and amerced for this trespass in a crimi- 
nal prosecution in the name of the United States, such conviction and 
fine could be pleaded in a bar to a civil action by the same plaintiff, is a 
question not before us in this case, and is therefore not decided. 

The judgment of the district court is therefore aflirmed. 



26 Civil LlalnUty. 

ORDER. 

This ciinse camo on to bo, hoard on tho transcript of the record from 
the district court of the United States for the northern district of 
Florida, and was argued by counsel. On consideration whereof it is 
now hei-e ordered and adjudged by this court that the judgment of the 
said district court in this cause be, and the same is hereby, affirmed, 
with damages at the rate of 6 per cent per annum. 

LIAlllLlTY OF rEUSON ('VTTTN(! TIMBER FROM PUBLIC LAND SOLD TO 
II I M I:Y ri'lllJc OFFK'Fh'S ]Vrril()nT AUTHORITY. 

Mary A. Piiinnky kt al. 

(2s I;. 1)., ](;:',.) 

A ))nrclia.S('r erroneously allowed to buy "offered" tiiuher land takes nothing 
thereby; and if \w, cuts timber from Hueh land i.s liable in damagen to the United 
StateH in a (rivil action, to the same (extent as though the trenpasH had been 
committed upon any otlx^r j)art of th(? j)ubli(r domain. 

* -x- x- * * * * 

Secretari/ Iliiclicocl' in l/u- ( '(ytiiiidKxloner of iJw General Land Office^ 

M<treh 3, 1800. 

Decendxu- 24, isix;, Mary Phinney, and Francis ,1. Burns as the duly 
apl)oint(^d administrator of the estate and guardian of th(^ minor chil- 
dren of .James F. Phinney, deceased, respectively, joiiunl in the execu- 
tion of a power of attorney making ITarvey Spaulding & Sons their 
attorneys to collect and receiye from the Ooycu'nment the purchase 
money, fees, and commissions, amounting to $310, paid by the said 
James F. Phinney April 1, 1884, under the timber and stone act, for 
the SW. ;[ of the SK. i of sec. 20 and tlu^ W. ^ of the NE. -\ of sec. 
29, T. ?>?> N., K. 3 E., Olympia, Wash. January 29, 1897, said attor- 
neys filed in your office a proper application for the repaymetitof said 
money, whi(^h was rejected. Appeal hei-e. 

James K. Phinney died .June 22, 1891, and your office canceled his 
entry for said hind, Marcii (5, 189.5, '■'l)ecause the land included therein 
was od'ered land, and hence not subject to entry undci- tiie act of June 
3, 1878." This entry, being of oll'ered lands, was erroneously allowed, 
and its confirmation was not autiiorized by law, since the timber and 
stone act of June 3, 1878 (20 Stat., 89), only authorized entries of 
unoff'ered lands. The cancellation thereof was, therefore, proper 
action. 

Section 2 of the act of Jun(^ l(i, 1880 (21 Stat., 287), provides that, 
where from any cause an entry under the desert-land laws — 

ban be(>n erroneously allow('il and can not be confirmed, the Secretary of the Interior 
shall cause to be re])aid to the ]ierson who made such entry, his heirs or assigns, the 
fees and commissions, amoimt of purchase money, and excesses paid upon the same, 



Civil Liahility. 27 

upon the snrrender of tho diiplioate receipt and the execution of a proper relinrjuinh- 
ment of all claims to said land, whenever Huch entry shall have heen duly canceled 
by the CornniiHsioner of the General Land r)ffice. 

Your oflSce denied .said application, for the following reasons: 

Special Agent C. E. LooiniH was directed to make an inspection of thin tract and 
report the condition of the timber thereon. On August J 2, 1892, the special ag<!nt 
reported that Pliinney had cut and removed about a million fe^-t of timber from this 
land in 1884 and 1885. The fees and purchase money paid by Phinncy on this entry 
amount to $310. Tliis amount is deemed a partial stit-off for the timber trcspaHS 
committed by i'hinney on tliis land. 

This decision is complained of \)\ the appellants, in su})stance, that 
it was error to hold that a tro.sj)ass was committed by ]^liinney, though 
the truth of the statements made in said agent's report he conceded; 
error to hold that there is any evidence showing or tending to show 
that Phiiuiey cut or removed a million feet of timb(!r, oi- any poi-tion 
of such timber, from this land, and error — 

in ?iolding that where it is plain an entry is erroneously allowed and can not be con- 
firmed!, and the entry is canc(-led for that reason, that the <jr)vernment can, on a one- 
sided, jjartial, and unsuljstantiated report of a special agent, without notice to the 
applicant, that at some time there has or may have been a cutting of the timber on 
the tract involved, avoid the repayinent of the purchase money, as provided for in 
the act of June 16, 1880. 

If the entryman, or any one for him, cut or removed timbei- from 
this land, he was, while living, and his estate is liable in trespass 
therefor. The officers of the Land Department, acting as the agents 
of the Government imder special powers, exceeded their authority in 
making the sale of this land under the timber and stone act, and the 
purcha.ser took nothing b}' his pui'chase, lie was therefoi-e liable in 
damages, and his estate is now liable in damages to the United States, 
to the same extent as though the trespass had been committed on any 
other of the public lands of the Unite^l States. He was not liable to 
a criminal pro.secution, because he was acting in good faith, believing 
that the timber })elong<!d to him. but this is not a \ alid dcfcrisf to a 
civil action. 

Af'jdTTAL f\ r/ii,\ff\Ar, SffT \0 I', A It TO SIIT 7 UECOVEJL THE 

VAIJ'K OF TIM HER. 

Stonk v. United Statks. 

Circuit court of appeals, ninth f;in;iiit (fH Fed. Ref)., 007). 

Judgment — Res Judicata— Acquittal op Criminal Charge. 

An acquittal of a person indicted for unlawfully and feloniously cutting and 
removing timber from public lands in violation of Revised Statute-, section 2461, is 
not a bar to an actirm by the United States against such j>ers<'jn to recover the 
value of such timber as being wrongfully cut and converted. (Coffey v. U. S., 6 
Sup. Ct., A'.rt; 116 \j. S., 442, di.stinguishe/^1.) 



28 Civil Liahility — Measure of Damages. 

Same — Proper Test. 

A proper test in determining whether a prior judgment between the same par- 
ties concerning the same matters is a bar to a subsequent action is to ascertain 
whether the same evidence which is necessary to sustain the second action would 
have been sufficient to authorize a recovery in the first suit if it had been given 
therein. 

STRUCTURES WRONGFULLY PLACED ON PUBLIC LAND. 

The mere continuance of a structure tortiously erected upon another's 
land, even after satisfaction of a judgment for such erection, is a tres- 
pass for which another action of trespass gu. cl. fr. will lie. (United 
States Digest, Vol. VI, p. 758, 1875; Russell v. Brown, 63 Me., 203.) 

MEASURE OF DAMAGES. 

E. H. Blt, plaintiff in error, v. The United States, defend- 
ant IN error; B. F. Hartley et al., plaintiffs in error, -y. 
The United States, defendant in error; The United States 
V. Day et al. (indictment). 

Circuit court, Minnesota (4 Dill., 464). 

In certain civil and criminal actions by the United States against trespassers upon its 
unsold timber lands: Held, that the official plats and books in the office of the 
register of the United States Land Office are admissible as evidence on its behalf 
to show that the land on which the timber was cut had not been sold by the 
United States. 

Parol evidence is not admissible on behalf of the defendants to show that the locus 
in quo was swamp land within the meaning of the swamp-land grant to the 
several States. 

The cutting of timber upon the public lands is a criminal offense (Rev. Stat., sec. 
2461), and the Government may proceed both civilly and criminally. 

Where timber is cut upon the public lands willfully, fraudulently, or negligently, 
and without authority, and made into saw logs, the Government may replevy 
such logs, even when they have reached the boom, or, at its election, may sue in 
trover for their value, and in either case may recover without deduction for their 
enhanced value, after severance from the freehold, arising from the labor of the 
wrongdoer. In such case the Government is not confined to the "stumpage" 
value. (Nesbit v. St. Paul Lumber Company, 21 Minn., 49L) 

Whether a different rule of damages would apply if the trespass were neither willful, 
fraudulent, nor negligent, quxre? 

CUTTING TIMBER UPON PUBLIC LANDS * * * —REMEDY OP GOVERNMENT — INDICT- 
MENT — REPLEVIN — TROVER — MEASURE OF DAMAGES. 

The Government has brought numerous civil suits in the nature of 
trover to recover the value of pine saw logs cut upon the public lands 
by the defendants or their vendors, and which, before the suits were 
commenced, had been rafted and brought down into the boom at Minne- 
apolis, Brainerd, and other places. It has also caused the persons who 



Civil Liahility — Remedy of Government — Pleasure of Damages. 29 

cut the timber to be indicted. Certain questions of law arising- in 
these cases were argued and decided, as shown in the opinion of the 
court. 

Dillon, C. J.: 

* * * * * * * 

3. The cutting of timber upon the public lands is made a crime by 
the legislation of Congress, which may be prosecuted by indictment 
(Kev. Stat., sec. 2461), notwithstanding the provisions of section 4751. 
And the Government may proceed against trespassers upon its land, 
civilly or criminally, or both at its election, and judgment in one form 
of remedy is no bar to the prosecution of the other remed}-. The 
principle of the decision of Mr. Justice Miller in The United States v. 
McKee, ante, has no application to such a case. 

It sues in these cases civilly, as the proprietor of the trees or timber 
which have been unlawfully cut and removed from its lands, to recover 
the value thereof. And it prosecutes the trespassers criminally in its 
sovereign capacity for a violation of its criminal statute in that behalf. 

4. Where timber has been cut into logs upon the public lands Ijy a 
person who knows that the land belongs to the Government, or w^ho 
has no reasonable ground to believe that it belongs to him or to some 
one under Avhom he claims, and such logs are by him hauled to the water 
course and rafted and taken to a distant boom, by means of which labor 
of the wrongdoer their value is much enhanced beyond their value when 
first severed from the freehold, the Government may replevy such logs 
in the boom, or may maintain an action in the nature of trover for 
their value, and in either case may recover without deduction for the 
enhanced value which may have been given to the logs after the sever- 
ance from the freehold by the labor of the wrongdoer. In such a case, 
the Government is not confined to what is called the " stumpage" value, 
but may recover the value of the logs in the boom. 

As in such case the title of the Government to logs thus cut con- 
tinues as against the wrongdoer and all persons (Town v. Dubois, 6 
Wall., 548) until at least there has been some greater transformation of 
the original propert}' than exists while it remains in the shape of logs, 
if the wrongdoer sells the logs to a person who has no actual notice 
that they were cut on the public lands, still the Government may 
maintain replevin against such vendee for the logs, if they are in 
existence, or if he has sawed them into lumber (which is a conversion 
of the logs), the Government may recover from him the value of such 
logs, when so manufactured into lumber, and is not confined to the 
"stumpage" value. 

On the last proposition the authorities are conflicting, and we adopt 
and follow the decision of the supreme court of the State upon the 
point. (Nesbit v. St. Paul Lumber Company, 21 Minn., 491.) 



30 Civil Liability — Measure of Dama<jeH. 

The rule above laid down is the only one which will effectually pro- 
tect the timber lands of the Government which are remote from settle- 
ments and in the wilderness. As against the willful or negligent 
trespasser the rule of damage indicated is not unjust, and as against 
his vendee it is perhaps the logical and necessary result of the prop- 
erty in the logs still remaining in the Government. At all events, it 
is the rule which has been approved by the supreme court of the State 
in the case before cited. 

It may also be observed that the conclusions reached have a strong 
support in the adjudicated cases. (Silsbur}^ v. McCoon, 3 Comst., 379; 
Riddles. Driver, 12 Ala. (N. S.), 590; Betts^^ Lee, .5 Johns., 348; Ellis 
-y. Wire, 33 Ind., 127; Schulenberg v. Harriman, 2 Dillon, 398, 404.) 

But there are cases which assert principles more or less in conflict 
with the cases just cited. (Moody v. Whitney, 38 Maine, 174; Single v. 
Schneider, 30 Wis., 570; Wetherbee v. Green, 22 Mich., 311— an 
instructive case.) 

There is also a class of cases, English and American, which hold 
that where coal or mineral ore is taken by one person from the land 
of another the ordinary measure of damages in trespass or trover is 
the value of the coal or mineral when it first became a chattel, or was 
converted, and not the value of coal or ore in place, or as it lay in the 
earth. The principal cases on this subject are cited and commented 
on in Barton Coal Company v. Cox, 39 Md., 1, S. C. ; 17 Am. Rep., 
525; S. P. McLean Coal Company v. Long, Sup. Ct. 111., Oct., 1876; 
in re United Merthyr Collieries Compan}^, Law Rep., 15 Equity Cases, 
46; S. C. 5 Eng. Rep. (Moak's ed.), 707. 

The cases last referred to have generally arisen between adjoining 
owners, and the mitigated rule of damages which they lay down may 
have been adopted in consequence of the difiiculty of ascertaining 
boundaries in subterranean mines, and it does not apply where the tres- 
pass is fraudulent or willful or negligent. At all events, the doctrine 
of these cases should not be extended to cases of willful Or negligent 
trespasses upon the public timber lands of the Government. 

If a private proprietor of timber lands used due precautions to ascer- 
tain his boundaries, and, by mistake of the surveyor, or without neg- 
ligence or fault on his part or that of his servants, unintentionally cut 
on the adjoining lands of the Government, he, in good faith, supposing 
he was cutting on his own lands, and the Government neglected or 
delayed to bring trover until the logs thus cut were enhanced in value 
two or three hundredfold by the labor of bringing them to market, in 
such a case it may be that the court would be warranted in directing 
the jury to allow as damages the value of the logs when first severed, 
and interest on that value. 

I am inclined to think the true doctrine of the measure of damages 
in trover is sufficiently flexible to allow this to be done when justice 



Civil Liahility — Measure of Damages. 31 

requires no greater recovery; l>ut the cases now before the court do 
not require a judgment on the point, and I leave it open for further 
consideration, should it arise. 

Nelson, J., concurs. Judgment accordingl3% 

3. A. Dodge et al. 

District court, Lewiston, Idaho, Dec-ember term, 1886. 

A preemptor who cuts or authorizes others to cut timber from his 
claim simply as a matter of converting the same into money, and not 
in good faith for the purpose of improving his claim and preparing it 
for cultivation, is a trespasser; if others purchase said timber they 
also are trespassers, and if they purchase knowing the facts they are 
willful trespassers. The fact that the United States afterwards patents 
said lands to other persons does not relieve those committing the tres- 
pass from their liability for their wrongful act in cutting the timber. 
(See Land Office Report for 1887, p. 479.) (See p. 180.) 

United States v. James A. Smith. 

District court, eastern Arkansas, April term, 1882. 

in the case of the United States c. James A. Smith at the April 
term, 1882, of the United States district court for the eastern district 
of Arkansas, where it was charged that said Smith uidawfully cut and 
removed certain timber from lands belonging to the United States in 
the State of Arkansas and converted the same into cord wood and rail- 
road ties, and where evidence was produced to show that he purchased 
said timber from parties who claimed to own the land upon which it 
stood, Judge Caldwell held as follows: 

Persons cutting and removing timber from lands are bound to know that tliey 
who a.ssumed to sell them the timber had the right to do so, and if they did not, the 
purchaser is liable to the lawful owner of the timber for its value, and if the trees 
are worked up into cord wood or railroad ties, such cord wood and ties are the prop- 
erty of the owner of the land as much as the trees were, and the owner of the land is 
entitled to recover the value of the timber in its new form; in other words, the value 
of the cord wood and railroad ties. 



In a case reported as involving purchase of public timber from a 
willful trespasser without reasonable inquiiy on the part of the pur- 
chasers, suit ordered to recover the manufactured value of the logs, 
leaving it to the defendants to prove the innocence of their purchase, 
if such exists. (See letter from Attorne^^-General to the Secretary 
of the Interior, November 17, 1886, in the case of Spies and Martin, 
Michigan.) 

The fact that the parties from whom purchase of public timber was 



32 Civil Llahlllty — Measure of Damages. 

made were irresponsible parties does not relieve the purchaser from 
responsibilit}^ in the matter, it being a fundamental principle of com- 
mon law that when a person purchases from an irresponsible party he 
is bound to take proper precautions to satisfy himself that said party 
had the right to dispose of the article in question. (See Land Office 
Report for 1887, p. 470.) 

In the matter of the claim of "innocent" purchasers "without notice 
of wrong," the stringent , and oft-enforced regulations of the Depart- 
ment respecting public timber constitute sufficient "notice" in respect 
to the necessity of taking due precautions not to infringe upon public 
timber. Carelessness or indifference on the part of speculators purchas- 
ing can not serve as a shield to ward off the consequence of their actions. 
(See Land Office Report for 1887, p. 474.) 

In purchasing timber, ignorance of the facts attending the procuring 
of the same or mistaken belief that all was right is no sufficient defense 
for violating the statiite which makes cutting and removing timber from 
public lands an offense irrespective of knowledge. (See Land Office 
Report for 1887, p. 473.) 

EXEMPLARY DAMAGES. 

The measure of damages for felling and carrying away trees from a 
tract of land is their value as they stood upon the land; and if their 
removal impaired the value of the land damages may be had for such 
injury. (United States Digest, Vol. IX, p. 201 (1872); Ensley v. Nash- 
ville, 58Tenn., 144.) 

Punitive damages may be recovered in a civil action for a wrongful 
act, notwithstanding the act constitutes an offense punishable under 
the criminal statutes. (United States Digest, Vol. VII, p. 230 (1875); 
Ward V. Ward, 41 Iowa, 686.) 

The public good in the restraint of others from wrongful doing, as 
well as the punishment of the offender, is to be considered in estimat-- 
ing exemplary damages. (lb.) 

Exemplary damages are not recoverable as matter of right. In award- 
ing them the jury must be governed by the malice or wantonness of the 
defendant as shown by the conduct they find him liable for. (United 
States Digest, Vol. VII, p. 231 (1875); Boardman v. Goldsmith, 48 
Vt., 403.) 

Where willfulness, fraud, malice, or oppression, evincing a disregard 
for the rights of others, characterize the wrongful act complained of, 
the jur}' are not limited in their verdict to the mere value of the prop- 
erty and interest, but may rightfully consider the circumstances of 
aggravation and increase the damages, so as to enforce a respect for 
the rights of others and as a punishment to the willful trespasser. 
(United States Digest, Vol. VIII, p. 223 (1875); Storm v. Green, 51 
Miss., 103.) 



Civil Liability — Measure of Damages. 33 

Where there is evidence from which the jury may find defendant 
acted maliciously in committing a trespass, they ma}' give plaintiff 
punitive damages. (United States Digest, Vol. XIII, p. 874; Smith 
V. Thompson, 55 Md., 5, S. C; 39 Am. Rep., 409.) 

The rule allowing exemplary or punitive damages applies where the 
wrongful acts of defendant are within the law for the punishment of 
crimes. (United States Digest, Vol. XIII, p. 244; Boetcher v. Staples, 
27 Minn., 308, S. C; 38 Am. Kep., 295.) 

WrLLis AND Wife v. Miller, Treasurer, etc., and others. 

Circuit court, eastern district of Virginia, October, 1886 (29 Fed. Rep., 238). 

Damages. * * * Malice. 

Malice in law is not necessarily personal hate or ill will of the trespasser 
toward the person injured, but it is that state of mind which is reckless of law 
and of the legal rights of the citizens; and the object of exemplary damages or 
"smart money" is not only to indemnify the sufferer for any loss sustained, but 
to prevent similar actions on the part of the trespasser in the future. 

Barry v. Edmunds. 

(116 U. S., 550.) 

It is settled in this cotirt that in an action for a trespass accompanied with malice, 
the plaintiff may recover exemplary damages in excess of the amount of his 
injuries if the ad damnum is properly laid. 

United States v. Taylor. 

Circuit court, southern district of Alabama (.35 Fed. Rep., 484.) 

Public Lands — Trespass — Right of Government to Sue — Possession — Homestead. 
Possession by a homestead claimant, and a receiver's receipt issued since bring- 
ing the action, do not divest the Government of possession or title so that it can 

not maintain an action of trespass for cutting timber on the land. 

******* 

Same — Nominal Damages. 

In such a case, merely entering on the land and cutting boxes or chipping 
trees, and removing therefrom crude turpentine, entitles plaintiff to nominal 
damages, though no actual damages were done. 

Same — Compensatory Damages. 

In an action for cutting growing trees, if their value can be ascertained without 
reference to the value of the soil on which they stand, the measure of damages 
is the injury done them and not the difference in the value of the land before 
and after such injury. 

Same — Exemplary Damages. 

In such a case the Government is entitled to exemplary damages, if the going 
on the land and cutting and chipping the trees, or dipping and removing the 
turpentine, was done by defendant willfully, or if such acts were the result of a 
negligence so gross as to show willfulness or a reckless indifference to the rights 
of the Government. 

21150—03 3 



34 Measure of Damages. 

WOODENWARE COMPANY V. UnITED StATES. 

(106 U. S., 432.) 

Error to the circuit court of the United States for the eastern district of Winconsin. 

Where the plaintiff, in an action for timber cut and carried away from his land, 
recovers damages, the rule for assessing them against the defendant is: 

1. Where he is a willful trespasser, the full value of the property at the time and 

place of demand, or of suit brought, with no deduction Tor his labor and expense. 

2. Where he is an unintentional or mistaken trespasser, or an innocent vendee from 

such trespasser, the value at the time of conversion, less the amount which he 
and his vendor have added to its value. 

3. Where he is a purchaser without notice of wrong from a willful trespasser, the 

value at the time of such purchase. 

The facts are stated in the opinion of the court. 

Mr. Justice Miller delivered the opinion of the court. 

This is a writ of error, founded on a certificate of division of opin- 
ion between the judges of the circuit court. 

The facts, as certified, out of which this difference of opinion arose 
appear in an action in the nature of trover, brought Ij}' the United 
States for the value of 242 cords of ash timber, or wood suitable for 
manufacturing purposes, cut and removed from that part of the public 
lands known as the reservation of the Oneida tril)e of Indians, in the 
State of Wisconsin. This timber was knowingly and wrongfully taken 
from the land b}'^ Indians, and carried by them some distance to the 
town of Depere, and there sold to the E. E. Bolles Woodcnware Com- 
pany, the defendant, which was not chargeable with any intentional 
wrong or misconduct or l)ad faith in the purchase. 

The timber on the ground, after it was felled, was worth 25 cents 
per cord, or $60.71 for the whole, and at the town of Depere, where 
defendant bought and received it, $3.50 per cord, or $850 for the whole 
quantity. The question on which the judges divided was whether the 
liability of the defendant should be measured b}^ the first or the last of 
these valuations. 

It was the opinion of the circuit judge that the latter was the proper 
rule of damages, and judgment was rendered agamst the defendant for 
that sum. 

We can not follow counsel for the plaintiflt in error through the 
examination of all the cases, both in England and in this country, 
which his commendable research has enabled him to place upon the 
brief. In the English courts the decisions have in the main grown out 
of coal taken from the mine, and in such cases the principle seems to 
be established in those courts that when suit is brought for the value 
of the coal so taken, and it has been the result of an honest mistake as 
to the true ownership of the mine, and the taking was not a willful 
trespass, the rule of damages is the value of the coal as it was in the 



Measure of Damages. 35 

mine before it was disturbed, and not its value wlien dug- out and deliv- 
ered at the mouth of the mine. (Martin v. Porter, 5 M. & W., 351; 
Morgan v. Powell, 3 Ad. & E. n, s., 278; Wood v. More wood, 3 id., 
440; Hilton v. Woods, Law Rep., 4 Eq., 432; Jegon v. Vivian, Law 
Rep.,OCh. App., 742.) 

The doctrine of the English courts on this subject is probably as well 
stated 1)}' Lord Hatherly in the Plouse of Lords, in the case of Living- 
stone i\ Rawyards Coal Company (5 App. Cas., 25), as anywhere 
else. He said: "There is no doubt that if a man furtivel}^ and in bad 
faith robs his neighbor of his property, and because it is underground 
is probably for some little time not detected, the court of equit}" in 
this countr}" will struggle, or, I would rather sa}^, will assert its 
authorit}^ to punish the fraud by fixing the person with the value of 
the whole of the property which he has so furtively taken, and mak- 
ing him no allowance in respect of what he has so done, as would have 
been justly made to him if the parties had been working by agree- 
ment." But "when once we arrive at the fact that an inadvertence 
has been the cause of the misfortune, then the simple course is to make 
every just allowance for outlay on the part of the person who has so 
acquired the property, and to give back to the owner, so far as is pos- 
sible under the circumstances of the case, the full value of that which 
can not be restored to him in specie." 

There seems to us to be no doubt that in the case of a willful tres- 
pass the rule as stated above is the law of damages both in England 
and in this country, though in some of the State courts the milder rule 
has been applied even in this class of cases. Such are some that are 
cited from Wisconsin. (Weymouth v. Chicago and Northwestern 
Railway Company, 17 Wis., 550; Single v. Schneider, 24 id., 299.) 

On the other hand, the weight of authority in this country, as w(^ll 
as in England, favors the doctrine that where the trespass is the result 
of inadvertence or mistake and the wrong was not intentional, the 
value of the propert}- when first taken must govern, or if the conver- 
sion sued for was after value had been added to it by the work of the 
defendant he should be credited with this addition. 

Winchester v. Craig (33 Mich., 205) contains a full examination of 
the authorities on the point. (Heard v. James, 49 Miss., 236; Baker 
V. Wheeler, 8 Wend. (N. Y.), 505; Baldwin v. Porter, 12 Conn., 484.) 

While these principles are sufficient to enable us to fix a measure of 
damages in both classes of torts where the original trespasser is 
defendant, there remains a third class, where a purchaser from him is 
sued, as in this case, for the conversion of the property to his own use. 
In such case, if the first taker of the propert}" were guilt}" of no will- 
ful wrong, the rule can in no case be more stringent against the 
defendant who purchased of him than against his vendor. 



36 Measure of Damages. 

But the case before us is one where, b}^ reason of the willful wrong 
of the party who committed the trespass, he was liable under the rule 
we have supposed to be established for the value of the timber at 
Depere the moment before he sold it, and the question to be decided 
is whether the defendant, who purchased it then with no notice that 
the property belonged to the United States, and with no intention to 
do wrong, must respond by the same rule of damages as his vendor 
should if he had been sued. 

It seems to us that he must. The timber at all stages of the con- 
version was the property of the plaintiff. Its purchase by defendant 
did not divest the title nor the right of possession. The recovery 
of any sum whatever is based upon that proposition. This right, at 
the moment preceding the purchase by defendant at Depere, was per- 
fect, with no right in anyone to set up a claim for work and labor 
bestowed on it by the wrongdoer. It is also plain that by purchase 
from the wrongdoer defendant did not acquire any better title to the 
property than his vendor had. It is not a case where an innocent 
purchaser can defend himself under that plea. If it were he would 
be liable to no damages at all, and no recovery could be had. On the 
contrar}^, it is a case to which the doctrine of caveat emptor applies, 
and hence the right of recovery in plaintiff. 

On what ground, then, can it be maintained that the right to recover 
against him should not be just what it was against his vendor the 
moment before he interfered and acquired possession ? If the case 
were one which concerned additional value placed upon the property 
by the work or labor of the defendant after he had purchased, the 
same rule might be applied as in the case of the inadvertent tres- 
passer. 

But here he has added nothing to its value. He acquired possession 
of property in the United States at Depere, which at that place and 
in its then condition is worth $850, and he wants to satisf}^ the claim of 
the Government by the payment of $60. He founds his right to do 
this, not on the ground that anything he has added to the property has 
increased its value b}^ the amount of the difference between these two 
sums, but on the proposition that in purchasing the propert}^ he pur- 
chased of the wrongdoer a right to deduct what the labor of the latter 
had added to its value. 

If, as in the case of an unintentional tresspasser, such right existed, 
of course defendant would have bought it and stood in his shoes; but 
as in the present case, of an intentional tresspasser, who had no such 
right to sell, the defendant could purchase none. 

Such is the distinction taken in the Roman law as stated in the 
Institutes of Justinian. (Lib. 11, Tit. 1, sec. 3-1.) 

After speaking of a painting by one man on the tablet of another, 



Measure of Dumagen. 37 

and holding it to be absurd that the work of an Appelles or Parrhasius 
should go without compensation to the owner of a worthless tablet, 
if the painter had possession fairly, he says, as translated by Dr. 
Cooper: 

But if he or any other shall have taken away the tablet feloniously, it is evident 
the owner may prosecute by action of theft. 

The case of Nesbitt v. St. Paul Lumber Company (21 Minn., 491) 
is directly in point here. The supreme court of Minnesota says: 

The defendant claims that because they (the logs) were enhanced in value by the 
labor of the original wrongdoer in cutting them and the expense of transiwrtmg 
them to Anoka, the plaintiff is not entitled to recover the enhanced value; that is, 
that he is not entitled to recover the full value at the time and place of conversion. 

That was a case, like this, where the defendant was the innocent pur- 
chaser of the logs from the willful wrongdoer, and where, as in this 
case, the transportation of them to a niarket was the largest item in 
their value at the time of conversion by defendant; but the court over- 
ruled the proposition and affirmed a judgment for the value at Anoka, 
the place of sale. 

To establish an}^ other principle in such a case as this would be very 
disastrous to the interest of the public in the immense forest lands of 
the Government. It has long been a matter of complaint that the dep- 
redations upon these lands are rapidly destro3^ing the finest forests in 
the world. Unlike the individual owner, who by fencing and vigilant 
attention can protect his valuable trees, the Government has no ade- 
quate defense against this great evil. Its liberality in allowing trees 
to be cut on its land for mining, agricultural, and other specified uses 
has been used to screen the lawless depredator who destroys and sells 
for profit. 

To hold that when the Government finds its own property in hands 
but one remove from these willful trespassers, and asserts its right to 
such property" by the slow processes of the law, the holder can set up 
a claim for the value which has been added to the property by the guilty 
party in the act of cutting down the trees and removing the timber, is 
to give encouragement and reward to the wrongdoer by providing a 
safe market for what he has stolen and compensation for the labor he 
has been compelled to do to make his theft effectual and profitable. 

We concur with the circuit judge in this case, and the judgment of 
the circuit court is affirmed. 

Cases applying this rule of damages will be found in U. S. v. Wil- 
liams, 18 Fed. Rep., 478; U. S. v. Heilner, 26 Fed. Rep., 82; U. S. v. 
Ordway, 30 Fed. Rep., 31; Aurora Hill, etc.. Mine Co. v. Eighty-five 
Mine Co., 34 Fed. Rep., 521; Murphy v. Dunham, 38 Fed. Rep., 511; 
U. S. V. Scott, 39 Fed. Rep., 901; U. S. v. Wingate, 44 Fed. Rep., 129. 



38 Measure of Damages. 

INSTEUCTIOXS RELATIVE TO MEASURE OF DAMAGES. 

The following circular relative to the rule of damag"es to be applied 
in cases of public timber trespass is based on the above decision in the 
case of Wooden-Ware Company v. United States (106 U. S., 432): 

CIRCULAR. 

(IL. 1)., 695.) 

Department of the Interior, 

General Land Office, 

Washington,!). C, March 1, 188S. 
Special timber agents., General Land Office. 

Gentlemen: Respecting the measure of damages to which the 
Government is entitled in settlement for timber trespass upon the pub- 
lic domain, the United States Supreme Court has recently decided 
that — 

1. Where the trespasser is a knowing and willful one, the full value 
of the property at the time and place of demand, with no deduction 
for labor and expense of the defendant, is the proper rule of damages. 

2. Where the trespasser is an unintentional or mistaken one, or an 
innocent purchaser from such a trespasser, the value of the timber at 
the time when first taken by the trespasser, or if it has been converted 
into other material, its then value, less what the labor and expense of 
the trespasser and his vendee have added to its value, is the proper 
rule of damages. 

3. Where a person or corporation is a purchaser without notice of 
wrong from a willful trespasser, the value at the time of purchase 
should be the measure of damages. 

You will, therefore, in cases where settlement is contemplated, state 
the facts and circumstances attending the cutting and the purchase of 
the timber in such clear and definite manner that the Supreme Court 
decision above referred to can be readil}" applied. 

In cases where settlement Avith an innocent purchaser of timber cut 
unintentionally, through inadvertence or mistake, is contemplated, j^ou 
are instructed to report as nearly as possible the damage to the Gov- 
ernment as measured by the value of the timber before cutting. 
Very respectfully, 

N. C. McFarland, 

Commissionefr. 

Department of the Interior, 

March i, 188S. 
Approved. 

H. M. Teller, 

Secn^etary. 



Measure of Damages. 39 

ISADOKE COHN. 

(20 L. D., 238.) 

In the settlement of an unintentional timber trespass the value of the timber at the 
time of its taking, or if it has been converted into another form, its then value, 
less what the labor and expense of the trespasser have added thereto, is the 
proper rule of damages. 

The fact that the trespasser in such case, in order to avoid prosecution, has offered a 
larger sum in settlement of the trespass than that required under the rule adopted 
by the Department is no reason why he should be held to such proposition, 
where it does not appear that he was acquainted with said rule. The sum inci- 
dent to the survey of the land, under direction of the agent, together with the 
sum found to be due for the timljer taken, is the amount he should be required 
to pay. 

It is not an act of trespass for a homesteader to remove timber from his land in the 
preparation of the same for cultivation, nor should his vendee be held liable on 
a proposition of settlement therefor. 

United States v. Mo(5k. 

Error to the circuit court of the United States for the northern district of California 

(149 U. S., 273). 

When the defendant in an action of trespass brought by the United States against 
him for cutting and carrying away timber from public lands admits the doing of 
those acts, the plaintiffs are entitled to at least nominal damages in the absence 
of direct evidence as to the value of the standing trees. 

It is not to be presumed in such case as matter of course that the Government per- 
mitted the trespass, and any instruction by the court pointing that way is error. 

This action was commenced by the filing of a complaint on May 6, 
1884, in the cii"cuit court of the United States for the northern district 
of (^alifornia, in which complaint it was alleged that the plaintiff was 
the owner, in 18T9, of a certain tract of land in the county of Fresno, 
State of California, describing it, upon which tract of land were grow- 
ing trees; that during that year the defendant unlawfully and wrong- 
fully cut down and carried off certain of these trees, to wit, 500 
pine trees, and manufactured them into lumber, producing 1,500,000 
feet of lumber, of the value of $15,000, for which sum judgment was 
asked. Defendant answered with a general denial. 

The case was tried before a jury in April, 1888. On the trial it 
appeared from the testimony of defendant, as well as that of other wit- 
nesses, that in 1879 defendant had built a sawmill adjoining the tract 
and operated it for a little less than three months; that it had a capacity 
of about 10,000 feet, board measure, a day; that he had five white men 
and two or three Indians employed at the mill; that the timber was 
cut in the vicinity of the mill. The defendant also admitted that he 
knew that the tract described in the complaint was Government land, 
and that ho did not at any time enter it as a homestead or preemption, 
and that a portion, though only a small portion, of the timber which 



40 Measure of Damages. 

he sawed was cut from that tract. There was the further testimony 
on the part of the Government of two timber agents, that after the 
commencement of this action the}' went upon the land and counted the 
number of stumps, and found 814 stumps of pine trees of the diameter 
of from 2 to 3 feet. There was also given in evidence an estimate of 
the amount of lumber that would be made from a tree of the size indi- 
cated by such stumps. There was evidence tending to show the price 
and value of lumber in that vicinity in the year 1879, but not the value 
of standing trees. In its instructions the court referred to the esti- 
mate made b}^ the timber agents of the amount of lumber that would 
have been manufactured from the timber cut upon the premises, and 
the admission made by the defendant that he had cut some timber, 
stated that there was no testimony that he had cut all the timber that 
had been cut thereon, and that the jury had no right to guess, and 
that unless proof had been offered which created a reasonable certainty 
in their minds as to the amount of timber cut by the defendant and its 
value, the verdict must be for the defendant, and then proceeded as 
follows : 

There are two elements entering into these cases. This is an action of trespass, a 
tort. It is wrong for one person to go on another person's land and cut and remove 
timber without the consent of the owner; so the going of any person on the public 
domain and cutting and removing from it timber without the consent of the Govern- 
ment is wrong, just as much as if I went on any of your ranches or vineyards, cut 
and removed the crops without your consent. But there is a vast difference in the 
character and quality of actions. A gentleman may permit the public to use a por- 
tion of his domain as a highway for years, and as long as it is being done with his 
tacit consent nobody would be held a trespasser for doing so; but when he notifies 
the public that it must cease then that tacit right ceases, and anybody who went on 
there might be justly held as a trespasser. The history of the country in regard to 
trespassing on the public domain and cutting timber for the use of the people in 
building their homes upon their farms and for general domestic purposes may be 
considered. As I observed, the Government is the proprietor of the soil. It has 
always owned the soil and the timber on it and the mines beneath it; but it is a 
matter of common knowledge in this country that the country could not have been 
settled up otherwise than by the practice and custom which has grown up in advance 
of legislation. 

It is a matter of history that the Government permitted the early pioneers as they 
went ahead to make their homes for themselves to go on the public domain and take 
such timber as was necessary for domestic use, and although there never was any law 
or license to that effect, it was done with the knowledge of every department of the 
Government — legislative, judicial, and executive. The earliest law that was passed 
that I remember was in 1831, forbidding, under pains and penalties, the entering on 
lands that had been reserved on which there were valuable forests of live oak and 
pine for shipbuilding. It is possible that there was other legislation following that, 
but I do not remember any until 1878, and during all that time every department of 
the Government knew how the country was being settled, and that men went on and 
felled trees with this tacit permission, or, if there was not a tacit permission, at least 
there was no reprehension of their acts. In this case, in order to judge wisely and 
fairly of this defendant, as to whether he was a wanton trespasser, you will have to 
take into consideration the concurrent circumstances surrounding his acts. While 



MeasuTe of Damages. 41 

I wish you to understand that I am not aware of any hcense having ever been given 
in the last sixty years to any party to go on the public domain and cut timber, no 
court has ever held, and no court would be justified in holding, that these men were 
all criminals who went on and put up a little mill for the purpose of aiding their 
neighboi's in procuring lumber for domestic purposes. I say you will not judge 
correctly whether these men were willful and wanton trespassers in the sense in 
which a trespass is willful and wanton unless you take into account the contempo- 
raneous history of the country and these matters, which are familiar to you all. If 
this party was a willful trespasser, and cut from the public domain this timber wan- 
tonly and maliciously, the Government is entitled to recover from him the full value 
of the timber by him so cut and removed from the public domain, without allowing 
at all for the increased value that he put upon it; for it will not be permitted that a 
man shall trespass on your property and commit waste and wanton destruction by 
removing it, that you shall be merely indemnified for the original value; in other 
words, you may recover your jsroperty and its value wherever you find it, whether 
the man has added to its value since he got it or not. This case is somewhat differ- 
ent from the case yesterday. This case presents this naked fact: That if you return 
a verdict for the Government, it must be for the value of the lumber manufactured. 
Now, no evidence had been offered in the case showing the market value of the trees 
or if they had any market value one way or the other. There is no evidence in the 
case to warrant you in concluding that the trees had any market value in 1879 or at 
any other time. The only evidence offered by the Government is as to the value of 
the timber after it was cut and made into lumber, and in that way this case differs 
from the case yesterday. Yesterday I instructed you in tliat case tliat if you find 
that although there \\as a trespass, that it was not willful, you might determine the 
value of the timber as it stood on the ground. In this case there is no evidence of 
that kind. 

The jury found a verdict for the defendant, and the Government has 
brought the case here on error. 

Mr. Justice Brewer, after stating the case, delivered the opinion of 
the court: 

The only errors alleged are in the charge. The specific portions to 
which the attention of the court was called at the time and exceptions 
taken are that which refers to the history of the attitude of the Gov- 
ernment toward pioneers and others who took timber from Govern- 
ment lands for domestic use and that which declared that no verdict 
could be returned in favor of the Government except for the value 
of the lumber manufactured. In these there was obvious error. 
Although there was no direct evidence of the value of the standing 
trees, yet it did appeaj" that they were manufactured into lumber and 
that the lumber had commanded a price of from $8 to |9 a thousand 
feet, and when the Government proved or defendant admitted that he 
cut and carried awa}^ some of the timber on this tract the Government 
was entitled to at least a verdict for nominal damages. As to any fur- 
ther right of recovery, see Wooden Ware Company i). United States, 
106 U. S., 132; Benson Mining Companj^ r. Alta Mining Company, 
115 U. S., 128. 

Nor were the observations of the court in reference to the attitude 
of the Government justifiable. Whatever j^ropriety there might be 



42 Measure of Damages. 

in such a reference in a case in which it appeared that the defendant 
had simply cut timber for his own use, or the improvement of his own 
land, or development of his own mine (and in respect to that matter, 
as it is not before us, we express no opinion), there certainl}^ was none 
in suggesting that the attitude of the Government upheld or counte- 
nanced a part}^ in going into the business of cutting and carr^dng off 
the timber from Government land, manufacturing it into lumber, and 
selling it for a profit; and that was this case. There is no pretense 
that the defendant cut timber for his own use; he says himself he sold 
it all. He ran a sawmill, cut timber, manufactured it into lumber, 
and made profit out of the sale of the lumber. There is nothing in the 
legislation of Congress or the history of the Government which carries 
with it an approval of such appropriations of Government property as 
that. 

The judgment must be reversed and a new trial ordered. 

See also United States v. Humphries, 149 U. S., 277. 

Beery v. Fletcher et al. 
Circuit court, western district of Missouri (1 Dill., 67). 

All who instigate, promote, or cooperate in the commission of a trespass, or aid, abet, 
or encourage its commission, are guilty. 
******* 

Where the defendants are sued jointly in trespass, the jury must find a single ver- 
dict, and assess damages jointly against such as are proved guilty of the mme 
trespass. 

In trespass against several, the jury should estimate damages according to the most 
culpable of the joint trespassers. 

All damages are referred by the law either to compensation or punishment. Com- 
pensation is to make the party injured whole. Exemplary damages are given, 
not to compensate the plaintiff, but to punish the defendant. 

United States v. Baxter et al. 

Circuit court, district of Washington, northern division (46 Fed. Rep., 350). 
******* 

Trespass— Burden of Proof — Damages. 

In an action of trespass by the United States for cutting timber on Government 
land, the burden of showing that the timber was cut by mistake, with a view of 
mitigating the damages, is upon the defendants; and in the absence of evidence 
to that effect, there is no error in permitting the Government to recover the 
value of the saw logs when already brought to the water. 

Trespass — Partnership. 

- Where such a trespass is committed by a firm, one partner can not show that 
as to him it was done through mistake, though his partner may not have been 
mistaken, and ask that one judgment for damages be rendered against him and 
a different one against his partner, since his holding the fruits of the tort after 
being notified of the mistake is a ratification of his partner' s act. 



Measure of Damages — Joint Trespassers — Enforcing Judgment. 43 

United States v. Eccles et al. 

Circuit court, district of Utah (111 Fed. Rep., 490). 
* * * * * * * 

Measure of Damages. 

Defendants, who unlawfully cut and removed timber from public lands, but 
believing, in good faith, that they had the lawful right to cut the same, although 
negligent, are liable only for its value as it stood in the trees. 

JOINT TRESPASSERS. 

LovE.TOY V. Murray. 

(3 Wall., 1.) 
******* 
A judgment against one joint trespasser is no bar to a suit against another for the 
same trespass. Nothing short of full satisfacition, or that which the law must 
consider as such, can make such judgment a bar. 

American Bell Telephone Co. v. Albright. 

Circuit court, district of New Jersey (32 Fed. Rep., 287). 

Judgment — Joint Trespasser — Bar of Recovery. 

A judgment against one joint trespasser or wrongdoer, without satisfaction, 
is no bar to a recovery against the others. 



In event of willful trespass committed b}^ one member of a firm his 
copartners are responsible for his acts on behalf of thelirm from which 
they receive the benefits or profits. (See Land Ofiice Report for 1887, 
p. 173.) 

ENFORCING JUDGMENT. 

Department of Justice, 

Washington, January ^i, 1887. 
Sir: I am in receipt of your letter of December 21, with its inclo- 
sures, relative to timber trespass by K. D. Byrne and J, McDavid, 
doing business at Bluffsprings, Fla., up to 1881. 

Pursuant to your request the United States attorney for northern 
Florida has been instructed * * * to bring civil suit for the man- 
ufactured value of the lumber, with a view to enforcing judgment 
against the defendants whenever the opportunit}' is afforded by their 
probable accumulation of property hereafter. * * * 

Very respectfully, A. H. Garland, 

Attoi'ney- Oe'neral. 

The Secretary of the Interior. 



44 Settlement — Compromise. 

SETTLEMENT IN CASES OF PUBLIC TIMBER TRESPASS. 
COMPROMISE. 

(Sec. 3469, U. S. R. S.) 

Upon a report by a district attorney, or any special attorney or 
agent having charge of any claim in favor of the United States, show- 
ing in detail the condition of such claim, and the term.s upon which 
the same may be compromised, and recommending that it be com- 
promised upon the terms so ofl'ered, and upon the recommendation of 
the Solicitor of the Treasury, the Secretary of the Treasury is author- 
ized to compromise such claim accordingl3^ But the provisions of 
this section shall not apply to any claim arising under the postal laws. 

DISTINCTION BETWKEN SETTLEMENT AND COMPROMISE. 

(5 L. D., 240.) 

A claim of the Government arising from timber depredations is for an unascertained 
amount which tlie Secretary of the Interior may properly find and determine 
and effect settlement for with the trespasser by receiving payment in full. 

The amount of such a claim having been duly ascertained and fixed, there is no 
authority in the Department to compromise the same by receiving in payment 
therefor a less sum than the amount found to be due. 

Secretary Lamar to the Secretary of the Treasury, November 15., 1886. 

I am in receipt of a communication from the Solicitor of the 
Treasury of May 13, 1886, relating to the question of the authorit}^ of 
this Department to compromise and settle timber depredation cases, 
referring to the opinion of the Attorney-General submitted January 8, 
1880, upon this subject. 

In his communication (with reference to this opinion) the Solicitor 
of the Treasury' says: " 1 am informed that since the date of this 
letter from the Attorney-General, a copy of which was furnished 
your Department about the time it was received, all applications for 
compromise of claims in favor of the United States arising from tres- 
passes have been considered and disposed of as provided for in section 
3469, Revised Statutes " (excepting certain cases therein referred to). 
Then referring to the regulations issued by the Commissioner of the 
General Land Office authorizing special agents to receive and con- 
sider propositions to settle claims in favor of the United States arising 
from trespass where the same were not willfully committed, says: "I 
know of no authorit}' by which an executive officer can compromise 
and settle a claim in favor of the United States, except that conferred 
by sections 295, 409, 3229, and 3469, Revised Statutes." He brings 
the subject to my attention with a view of securing some uniform 
action. To this end I submitted the communication to the Conimis- 



Settlement — Compromise. 45 

sioner of the General Land Office for report, which is now before me, 
a copy of which I also transmit herewith. 

The Commissioner of the General Land Office, doubting the authority 
of that office or of this Department to settle and compromise such 
cases, recommends that the practice heretofore followed of entertain- 
ing propositions in that office and this Department for settlement of 
timber trespasses be discontinued. 

While I concur fully in the opinion of the Solicitor of the Treasury 
that there is no authority by which an executive officer can compromise 
a claim in favor of the United States, except that conferred by section 
3469, 1 do not consider said section as a restriction upon the authority 
of any executive officer to settle a claim in favor of the United States 
where such settlement is not the result of a compromise, but a set- 
tlement in full payment of the entire amount due the Government 
on such claim and where such settlement is made by the Department 
having control and jurisdiction of the subject-matter. 

The authority conferred by section 3469 is alone necessary to be con- 
sidered in the investigation of this subject. That section provides that 
"upon a report by a district attorney, or any special attorney or agent 
having charge of any claim in favor of the United States, showing in 
detail the condition of such claim and the terms upon which the same 
Uiay be compromised^ and recommending that it hQcoinjyt'omlsedxx^ow the 
terms so offered, and upon the recommendation of the Solicitor of the 
Treasury, the Secretary of the Treasury is authorized to compromAse 
such claim accordingly. But the provision of this section shall not 
apply to any claim arising under the postal laws." 

After a careful consideration of the question of authority of an 
executive officer to compromise a claim in favor of the United States, 
except as provided for by the section above quoted, and of the charac- 
ter of claims arising from timber depredations and the authority to 
settle the same as exercised by this Department, I have been unable 
to concur with the views of the Solicitor of the Treasury or the recom- 
mendation of the Commissioner of the General Land Office that no 
proposition for the settlement of timber depredation claims should in 
the future be entertained b}^ this Department, or that the settlement of 
such claims effected through it is the exercise of a doubtful authority. 

It seems to me apparent that the difference of opinion as to the 
authority of this Department to settle timber depredation claims arises 
from the use of the words "compromise" and "settlement" in the same 
sense, or else the impression must prevail that the settlement of such 
claim, as now authorized and executed by this Department, is a settle- 
ment made upon a compromise of a specific amount found to be due. 

Speaking of the regulations issued ])y the Commissioner and addressed 
to special agents, the Solicitor of the Treasury sa}' s that such regula- 
tions "contemplate that they may receive and consider propositions to 



46 Settlement — Comjjromise. 

settle claims in favor of the United States arising from trespass where 
the same were not willfully committed," and adds : " 1 know of no author- 
ity by which an executive officer can compromise and settle a claim in 
favor of the United States except that conferred by sections 295, 409, 
3229, and 3469, Revised Statutes." If it is intended by this that no 
authority exists in this Department to settle a claim upon a compro- 
mise of the amount found to be due, I concur in that view; but if it is 
intended that there is no authority in this Department to ascertain and 
determine what amount is due, and to settle such claim by receiving 
the full amount so found to be due, I do not concur. 

A compromise implies a mutual concession or an agreement to 
receive in payment a less sum than the amount found to be due, and 
it is in this sense that the term is employed in section 3469. I do not 
understand that the settlement of such claims as authorized by this 
Department is a settlement of that character. 

The general power and authority conferred upon this Department 
respecting public lands includes the duty and authority to protect from 
depredation the timber thereon, and to seize what is cut and taken 
away from them wherever it may be found. It follows that in the 
exercise of that power and duty this Department has full authority to 
ascertain and determine under the law the extent of such depredation, 
the value of the timber cut and destroyed, the character of the tres- 
pass, and when the amount of the claim has been ascertained to receive 
payment of the full amount of such claim in satisfaction thereof. 
(Wells V. Nickles, 104 U. S., 447; Wooden Ware Company v. United 
States, 106 U. S., 432.) 

In the execution of this power and dut}^ special agents have been 
appointed, who are directed to investigate and report upon all cases of 
timber trespass, and to receive propositions for settlement of the same. 
The instructions issued to special agents require the trespasser to sub- 
mit with his proposition for settlement a sworn statement showing the 
character of the trespass, the amount of the timber, its value when 
standing in the tree, when felled and cut into logs, when delivered at 
the landing, when delivered at the mill, when manufactured into lum- 
ber, and its value in its position and condition when purchased by 
the party in whose possession it was found. 

In respect to the character of the trespass, the Supreme Court, in 
the case of Wooden Ware Company v. The United States, sujnrf, have 
announced certain rules which have been embraced in the instructions 
to special agents. Under the sworn statement so furnished, and the 
rules adopted for their guidance, the special agents investigate and 
report upon the claim, by which means the amount due the Govern- 
ment is officially ascertained and determined. A claim due the 
Government arising from timber depredations is a claim for an unas- 
certained amount, which the Secretary of the Interior, through the 



Settlefnient — Compromise. 47 

officers and agents of this Department, linds and determines. A set- 
tlement made with the trespasser by receiving payment of the amount 
so found to be due is in no sense a compromise, but payment in full of 
the claim due to the Government; and I can see no reason for invoking 
the action of the judicial department to ascertain and determine that 
which the executive department in the scope of its authority has 
already determined, or to enforce payment by suit when the trespasser 
offers to discharge his lial)iiity without suit. 

The special agents may report the character of the trespass, the 
amount and the value, or either of these facts, different from that 
shown by the sworn statement of the trespasser; as, for instance, the 
trespasser may claim that he is an innocent purchaser from an unin- 
tentional trespasser, and may offer to pay the value of the timber at 
the time when taken. The special agent may report that the trespass 
was willful, of which the purchaser had notice, and may recommend 
settlement at the full value of the property at the time and place of 
demand. Upon further investigation by the special agent or upon 
examination b}^ the Commissioner or the Secretary, it may be determined 
that the purchase was made without notice of wrong, but from a willful 
trespasser, and that the timber should be settled for at the value of the 
propert}^ at the time of purchase, to which the trespasser may agree 
and settle. While the amount paid may be greater than the amount 
originally offered and less than the amount originally reported b}^ the 
Government officials, it is not a compromise of the claim, but a deter- 
mination from the facts of the case of the amount due the Government. 

If after that amoimt has been ascertained the trespasser either 
declines to pay or is unable to pay it, but offers a less amount, there is 
no authority in this Department to compromise the claim, but the future 
control of the case should bo left with the Department of Justice. 

This question was incidental!}- passed upon by the Solicitor-General, 
acting as Attorney-General, in his letter of August 23 last, addressed 
to this Department, relative to the seizure of timber taken from the 
public lands, from which I infer that the Department of Justice con- 
curs in the view herein expressed; but as this question was not directly 
involved in the matter referred to I do not feel at liberty to claim it as 
authority for this opinion. 

Being satisfied that this Department not only has authority, but that 
it is its dut}- to take jurisdiction of and to settle all such cases in the 
manner herein stated, I have for this reason so fully presented the 
matter for your consideration, with the request that if you should not 
agree in this opinion 3^ou will concur in submitting the matter to the 
Attorney-General for his opinion thereon. 



48 Settlement — Criiivinal Liability. 

SETTLEMENT — CRIMINAL LIABILITY. 

A proposition of settlement submitted with the understanding that, if accepted, 
criminal proceedings for the trespass will be waived, will be rejected. 

8ec7'etary Hitchcock to the Coinniissicmer of the Genen'ol Land Office^ 

Octoher '23, 1900. 

By your office letter "P" of the 4th instant, signed by the Acting 
Commissioner, there was submitted for my consideration the report, 
with accompanjdng papers, of Special Agent H. H. Schwartz, of your 
office, relative to a timber trespass committed upon certain described 
lands in Minnesota by the C. A. Smith Lumber Company, a corpora- 
tion of that State. The timber, amounting in the aggregate to over 
200,000 feet of white and Norway pine, was cut under contract with 
the administratrix of the estate of George A. Barclay, and the aggre- 
gate value of the timber in the position and condition where found is 
shown to be 11,702.70. 

The C. A. Smith Lumber Company, through its vice-president, has 
offered to settle its liability by pajdng the full value of the timber as 
stated. 

Without repeating all the facts set forth in your letter and the special 
agent's report, it is sufficient to say that the special agent states the 
trespass to have been willfully committed, either by one Craig (who 
was the agent of said company) to make a showing for the company, 
or else bj' instructions from the company. The special agent, how- 
ever, recommends, in view of all the facts in the case — and you concur 
therein — that the proposition of settlement be accepted. The ground 
upon which the special agent bases his recommendation is that criminal 
conviction could not be obtained in this case against either Craig or 
C. A. Smith. Craig, in his judgment, could not be convicted, because 
he would show that he was working by the month and that there was 
no inducement for him to commit a trespass; that the C. A. Smith 
Lumber Compan}^ is one of the largest lumber concerns in the State, 
and that a man with the wealth and social and political influence of 
Smith could not be convicted. 

Attached to his formal report in the case is a letter from Special 
Agent Schwartz to you, in which he discusses at some length what, in 
his judgment, should be the policy of the Department in dealing with 
cases of this character, and your office letter calls my special attention 
to, and requests my special consideration of, that letter. 

The substance of the special agent's letter is that where a trespass is 
committed and where, in the judgment of the agent, after investigation, 
a criminal conviction can not be obtained, and an offer is made to settle 
for the full value of the timber, that such propositions should be 
accepted and criminal prosecution waived. He, of course, does not 



Settlement — Criminal Liability. 49 

recommend that such a rule should be promulgated by the Depart- 
ment, but rather that the principle should find expression in the prac- 
tice thereof. 

He urges that it will be practically impossible for an agent to obtain 
from a trespasser a proposition to pay the full value of the timber if 
he can not be practically assured that no criminal prosecution will fol- 
low, because such a proposition would be a tacit admission on the part 
of the trespasser of criminal liability. He also says that it is a com- 
paratively easy matter to obtain a proposition from a trespasser to pay 
the stumpage value of the timber, because that furnishes him an easy 
manner of purchasing Government timber; but that when trespassers 
are made to know that they will be required to pay the full value of 
the timber whenever they cut from public lands and that there is no 
profit to ])e obtained therefrom, such tresspasses will cease; and you 
concur in that statement and affirm that it accords with the experience 
of 3^our office. 

I have carefully considered the letter of the special agent and your 
office letter transmitting it. I am especially impressed with the state- 
ment made by ^^our office that convictions in criminal action against 
wealthy individuals or corporations are rarely obtained, and that when 
they are obtained a mere nominal fine is usually the result, and that 
with every failure to convict the prestige of the Government is lowered, 
and trespassing upon the Government lands becomes more defiant and 
frequent. 

If, as stated, convictions are rarely secured, it is an indication either 
the cases are not properly investigated and prepared in the first 
instance by the officers of this Department, or that there is a woeful 
lack of vigor and efficiency in their prosecution. If it is the former, it 
should be corrected at once. If the lattei* the attention of the Depart- 
ment of Justice should be called to it without dela3^ 

It is inconceivable to my mind that where there is a case of willful 
trespass, where the facts are undisputed or clearly established, where 
the property of the Government has been taken willfully and deliber- 
ately, whether by a rich man or a poor one, that the arm of the Gov- 
ernment is not strong enough to administer adequate punishment and 
vindicate the majesty of the law. 

I am aware of the difficulties with which special agents have to con- 
tend in the investigation and preparation of these cases, but if the}^ are 
carefull}^ and conscientiously investigated and prepared, and, where 
willful in character, vigorously prosecuted, both civilly and criminally, 
better results will, in my judgment, be obtained than by adopting the 
policy suggested by Mr. Schwartz and your office, and would not put 
the Department in the attitude of condoning a violation of the law. 

The efl^ect of the policy suggested by the special agent and 3'our office 
might be as good upon the individual, but it would not be so, in my 
21150—03 4 



50 Settlement — Goinpromhe. 

judgment, upon the community; for the next individual disposed to 
trespass upon the public lands would feel that he could do so with 
impunity, as in case of detection the only inconvenience he would be 
required to suffer would be to pay the Government the value of the 
timber. 

Besides, the judgment of the most capable special agent and others, 
familiar with local sentiment and conditions, as to the probability of 
obtaining a conviction in such cases, is often at fault. Such instances 
are known to the Department. 

Existing laws, if vigorously enforced, are amply adequate to protect 
and preserve the public timber, and it is to secure such an enforcement 
of those laws that this Department should bend its energies. There 
will, of course, arise cases of willful trespass where it will be advisable 
to accept the proposition of settlement and waive criminal proceed- 
ings, the evidence being insufficient to convict. But this is not such 
a case, and as the proposition of settlement appears to have been sub- 
mitted with the understanding that, if accepted, criminal proceedings 
would be waived, it is hereby rejected, and you are directed to pre- 
pare the case for submission to the Attorney-General for the institu- 
tion of both civil and criminal proceedings against all the parties 
involved. 

Wells v. Nickles. 

(104 U. S., 444.) 

While no act of Congress expressly authorizes the Secretary of the Interior or other 
oflScer of the Land Department to appoint timber agents, the appropriation of 
money by Congress to pay them is a recognition of the validity of their appoint- 
ment. 

Where the instructions of the Commissioner of the General Land Office directed the 
agents to seize and sell timber cut on the public lands, and also authorized them 
to compromise with the trespasser on his paying a reasonable compensation for 
the timber cut and taken away, Held, That a compromise so made by which he 
pays all the costs and expenses of the seizure, and gives bond to pay for the tim- 
ber when its value shall be ascertained, pursuant to the agreement, is binding on 
the United States. 

This compromise, should, in violation of its terms, the property be seized and sold 
by such agents, is evidence of his title and right of possession in his action 
against their vendee for the recovery of the property. 

SETTLEMENT FOR TRESPASS UNDER ACT OF JUNE 3, 1878 (20 STAT., 89). 
******* 

Sec. 5. That any person prosecuted in said States and Territory 
for violating section two thousand four hundred and sixty-one of the 
Revised Statutes of the United States who is not prosecuted for cut- 
ting timber for export from the United States, may be relieved from 
further prosecution and liability therefor upon payment, into the court 
wherein said action is pending, of the sum of two dollars and fifty cents 



Settlement — Acts of June 3^ 1878, and June 15, 1880. 51 

per acre for all lands on which he shall have cut or caused to be cut 
timber, or removed or caused to be removed the same: Provided, That 
nothing contained in this section shall be construed as granting to the 
person hereby relieved the title to said lands for said payment; but he 
shall have the right to purchase the same upon the same terms and 
conditions as other persons, as provided hereinbefore in this act: And 
further j)rovided. That all moneys collected under this act shall be cov- 
ered into the Treasury of the United States. And section four thou- 
sand seven hundred and fifty -one of the Revised Statutes is hereby 
repealed, so far as it relates to the States and Territory herein named. 
The provisions of this act are extended to all the public-land States 
by the act of August 4, 1892 (27 Stat., 348). (See p. 101.) 

PA YMENT OF§2J>0 PER ACRE, UNDER SECTIONS OF THE ACT OF JUNE 
3, 1878 {30 STAT., 89), ONLY RELIEVES FROM CRIMINAL LIABILITY. 

United States r. Scott et al. 

Circuit court, northeru district of California (39 Fed. Rep., 900.) 

PrBLic Lands — Cutting Timber — Payment for Land. 

A party prosecuted for cutting timber on the public lands under section 2461, 
Revised Statutes, is only relieved from the criminal prosecutions and liabilities 
provided for in said section 2461 by payment of $2.50 per acre for the land on 
M'hich it is cut, in pursuance of the provisions of the act of 1878 (1 Supp. Rev. 
Stat., p. 169, sec. 5); he is not relieved from his civil common-law liability to 
the United States as owner of the land for the value of the timber cut. 

SETTLEMENT OF TEESPASS BY PURCHASE OF THE LAND TRESPASSED 

UPON. 

(Act of June 15, 1880; 21 Stat., 2:57.) 

£e it enacted hy the Senate and House of Representatives of the ZTnited 
States of America^ in, Congress assemhled, That when any lands of the 
United States shall have been entered and the Government price paid 
therefor in full no criminal suit or proceeding by or in the name of the 
United States shall thereafter be had or further maintained for any 
trespasses upon or for or on account of any material taken from said 
lands, and no civil suit or proceeding shall be had or further main- 
tained for or ofi account of any trespasses upon or material taken from 
the said lands of the United States in the ordinary clearing of land, in 
working a mining claim or for agricultural or domestic purposes or for 
maintaining improvements upon the land of any bona fide settler or 
for or on account of any timber or material taken or used by any per- 
son without fault or knowledge of the trespass or for or on account of 
any timber taken or used without fraud or collusion by any person 
who in good faith paid the officers or agents of the United States for 
the same or for or on account of any alleged conspiracy in relation 
thereto: Provided, That the provisions of this section shall apply only 



52 Settlement — Sale of PiMic Timher — Moiety. 

to trespasses and acts done or committed and conspiracies entered into 
prior to March first, eighteen hundred and seventy-nine: And provided 
further. That defendants in such suits or proceedings shall exhibit to 
the proper courts or officer the evidence of such entry and payment 
and shall pay all costs accrued up to the time of such entr3^ 

* * * * * * * 

Sec. 4. This act shall not apply to any of the mineral lands of the 
United States; and no person who shall be prosecuted for or proceeded 
against on account of any trespass committed or material taken from 
any of the public lands after March first, eighteen hundred and seventy- 
nine, shall be entitled to the benefit thereof. 

SALE OF PUBLIC TIMBER. 

Public timber unlawfully cut may be disposed of by public sale after 
advertisement, or b}^ priv^ate sale, either with or without previous 
advertisement. (See Department of Justice to Secretary of the Inte- 
rior, August 23, 1886, p. 56). 

Advertising must be by consent of Secretary of the Interior. (See 
Rev. Stat., 1878, sec. 3828.) 

• DISPOSITION OF MONEYS COLLECTED FOR DEPREDATIONS UPON 

PUBLIC LANDS. 

MOIETY. 

Sec. 4751. All penalties and forfeitures incurred under the provi- 
sions of sections twenty-four hundred and sixty-one, twenty-four hun- 
dred and sixty-two, and twenty-four hundred and sixty-three, Title 
"The Public Lands," shall be sued for, recovered, distributed, and 
accounted for, under the directions of the Secretary of the Navy, and 
shall be paid over, one-half to the informers, if any, or captors, where 
seized, and the other half to the Secretary of the Navy for the use of 
the Navy pension fund; and the Secretary is authorized to mitigate, 
in whole or in part, on such terms and conditions as he deems proper, 
by an order in writing, any fine, penalty, or forfeiture so incurred. 

(Act of Apr. 30, 1878; 20 Stat., 46.) 

* * * * * * * 

Sec. 2. * * * Provided, That all moneys heretofore, and that 
shall hereafter be, collected for depredations upon the public lands 
shall be covered in the Treasury of the United States as other moneys 
received from the sale of public lands : A?id provided furtrJier, That 
where wood and timber lands in the Territories of the United States 
are not surveyed and offered for sale in proper subdivisions, conven- 
ient of access, no money herein appropriated shall be used to collect 
any charge for wood or timber cut on the public lands in the Territo- 



Settlement— Sec. 5, Act of June 3, 187S {20 Stat., 89). 53 

ries of the United States for the use of actual settlers in the Terri- 
tories and not for export from the Territories of the United States 
where the timber grew: And provided further., That if any timber 
cut on the public lands shall be exported from the Territories of the 
United States, it shall be liable to seizure by United States authority 
wherever found. 

TIMBER LANDS IN THE STATES OF CALIFORNIA, OREGON, NEVADA, AND 
IN WASHINGTON TERRITORY. 

(Chapter 151; approved June 3, 1878; 20 Stat., 89.) 



Sec. 5. That any person prosecuted in said States and Territory for 
violating section two thousand four hundred and sixt3^-one of the 
Revised Statutes of the United States who is not prosecuted for cut- 
ting timber for export from the United States, may be relieved from 
further prosecution and liability therefor upon payment, into the 
court wherein said action is pending, of the sum of two dollars and 
fifty cents per acre for all lands on which he shall have cut or caused 
to be cut timber, or removed or caused to be removed the same: Pro- 
vided., That nothing contained in this section shall be construed as 
granting to the person hereby relieved the title to said lands for said 
payment; but he shall have the right to purchase the same upon the 
same terms and conditions as other persons, as provided hereinbefore 
in this act: And further' provided., That all moneys collected under 
this act shall be covered into the Treasury of the United States. And 
section four thousand seven hundred and fifty-one of the Revised 
Statutes is hereby repealed, so far as it relates to the States and Terri- 
tory herein named. 

The act of August 4, 1892 (27 Stat., 348), extends the provisions of 
this act to all the public-land States. 

MOIETY CLAUSE OF SECTION 4761, U. S. R. S., MODIFIED AND PARTLY REPEALED. 

(17 Op., p. 592.) 

The provisions in section 2 of the act of April 30, 1878, chapter 76, requiring moneys 
collected for depredations upon the public lands to be covered into the Treasury, 
in effect modifies section 4751, Eevised Statutes, only as to that part of the pen- 
alties, etc., recovered which was payable under the latter section to the Secretary 
of the Navy ; it does not aff ec^t the part payable thereunder to informers. 

Section 5 of the act of June 3, 1878, chapter 151, applies to the Pacific States and 
Washington Territory, and repeals section 4751, Revised Statutes, only so far as 
concerns such States and Territory. 

Department of Justice, July 19., 1883. 
Sir: Yours of the 16th instant incloses a note addressed to yourself 
from the United States attorne}^ for eastern Michigan, which informs 
you that certain fines under section 2461, Revised Statutes, are now in 



54 Sec. 5, Act of June 3, 1878 {20 Stat., 89). 

the registry of the district court for his district, and that he supposes 
them to be (Ustrihiitable under your direction (to the informer, etc.) 
under section -±751. 

You also inclose certain letters upon the same subject from the files 
of your Department (dated September 12, 1879, September 3, 1880, 
and October 14, 1880), in the course of which the Solicitor of the 
Treasury intimates a doubt whether section 4751 has not been in 
effect repealed by the act of April 30, 1878 (chap. 76, sec. 2), such 
doubt being, as he says, somewhat affected b}" the circumstance that 
this section was subsequently (act of June 3, 1878, chap. 151, sec. 5) 
expressly repealed as to certain States only. 

Upon the whole matter 3'ou ask how far your powers under section 
4751 have been modified by subsequent legislation, the practical (ques- 
tion being that as to distribution, presented above, in eastern Michigan. 

As my attention has not been called to an 3^ subsequent legislation 
other than the acts of 1878 cited in your letter, I will confine what 1 
have to say to their operation only. 

Section 4751 makes a threefold provision as to its subject-matter, 
i. e. , depredations upon timber standing upon the public lands: (1) Suits 
therefor shall be under the direction of the Secretary of the Navy; 
(2) one-half of any penalties, etc., recovered shall be paid to informers 
and the other half to the Seci'etary of the Navy, and (3) the Secretary 
is authorized to mitigate penalties, etc., so incurred. 

Thereupon the act of April, 1878, provided "that all moneys here- 
tofore and that shall hereafter be collected for depredations upon the 
public lands shall be covered into the Treasury of the United States as 
other moneys received from the sale of public lands" (Supp. Rev. Stat., 
316), and the act of June 3, 1878 (Supp. Rev. Stat. , 328)— the main pur- 
pose of which was to provide for the sale of the public timber lands 
in the Pacific States and Washington Territory— after repeating the 
provision just quoted for all sales so to be made, goes on immediately 
thereafter to expressly repeal section 4T51 so far as concerns such 
States and Territories. 

Referring to the threefold operation of section 4751 above mentioned, 
it is plain that it is not repealed by the act of April, 1878. For 
instance, this latter enactment does not touch the powers of the Sec- 
retary as regards the superintendence of suits or the mitigation of 
penalties. The opinion of the Attorney-General of February 17, 1882, 
referred to by you, goes upon this view, although it is one only inci- 
dental to the point which he there discusses. 

I am now asked in effect how far this act modifies the provision 
designated above as " (2)." 

In my judgment it applies only to that part of the penalty which is 
payable to tJie Secretary. 

Since the year 1831, when the provisions of section 4751 were first 



Sec. 5, Act of June 3, 1878 {20 Stat., 89). 55 

enacted, it has become the general polic}^ of the United States to require 
that all moneys collected m behalf of the United States shall be paid 
into the Treasury (Rev. Stat., sec. 3617). Some exceptions thereto,' 
not depending upon any special reason, which here and there had 
escaped attention, are gradually disappearing. I regard the provision 
of the above act of 1878 merely as putting an end to one of these 
exceptions. 

This is the more evident fi'om the circumstance that it operates 
expressly upon all collections theretofore as well as upon those there- 
after. As the legislature could not have meant to disturb the informer's 
rights in the former cases — at all events in many of them — it appears 
that they were not advertent., or therefore referring., to such rights in 
any case. 

So that what is meant is, that so much of such money as is collected 
for the United States shall be paid into the Treasury., and not, as there- 
tofore, to the Secretary. The emphasis is upon the disposal, not the 
proportion of certain moneyed interests of the United States. 

That this is the true interpretation appears also from a correspond- 
ing passage in the act of June, 1878, where, although section 4751 is 
expressly repealed, yet express provision {ex ahundanti) is added as to 
the payment into the Treasury of the proceeds of the sales therein 
ordered; as if it had not been enough to repeal the provision which 
gave what had been, to a certain extent, the equivalents of such pro- 
ceeds to the Secretary, but were necessary also to direct expressly that 
the proceeds themselves shall follow the general direction of public 
moneys. 

The two acts of 1878, therefore, have their distinct operations, that 
of April applying to the whole country, and merely directing that 
whatever moneys vest in the United States under section 4751 shall 
thereafter be paid into the Treasury, that of June applying to certain 
localities onl}^, and for them entirely annulling section 4751, adding 
also a proviso that any moneys which might arise from the methods 
therein devised as substitutes for those referred to in section 4751 
should (in like manner) be paid into the Treasury. 
Ver}' respectfully, 

S. F. Phillips, 
Acting Attor7iey- General. 

The Secretary of the Navy. 

MOIETY CLAUSE OF SECTION 4751, U. S. R. S., REPEALED AS REGARDS ALL PUBLIC- 
land states. 

Department of Justice, 
Washington, D. (7., May 9, 1895. 
Sir: Replying, as promised by my letter to you of the 15th ultimo, 
to your inquiries concerning the proper construction of section 2461, 
R. S. U. S., relating to timber trespass on public lands, and section 



56 Seizure. 

4751, R. S., relative to the moiety allowed to informers, as affected by 
the act of June 3, 1878 (20 Stat., 89; 1 Supp. R. S., p. 169), relating 
to public lands in California, Oregon, Nevada, and Washington Ter- 
ritory, providing for settlement of prosecutions and repealing said 
section 4751, and as affected by the act of August 4, 1892 (27 Stat., 348), 
making general as to all public-land States the said act of 1878, I will 
say that I perceive no reason for doubting that prosecutions in Wis- 
consin under said section 2461 ai-e covered by the provision of the act 
of 1878 (as amended b}^ said act of 1892) in regard to settlement of 
prosecutions for the sum of $2.50 per acre. As relates to informers, I 
am of the opinion that said section 4751 is repealed as to all the "public- 
land States," which, of course, includes Wisconsin. If you, or any 
informer, desire decisive settlement of these points, you may institute 
a test case in order to bring them before the court. 
Respectfully, 

Richard Olney, 

Attorney- General. 
Mr. H. E. Briggs, 

United States Attorney, Madison., Wis. 



SEIZURE. 

TIMBER UNLAWFULLY CUT ON PUBLIC LANDS. 

(18 Op., 434.) 

The Land Department has authority to make seizure, through its officers or agents, 
of timber unlawfully cut on the public lands. 

Timber unlawfully cut on the public lands, which has been seized by duly authorized 
agents of the Land Department and is in their custody, may be disposed of by 
that Department; and whether this be done by public or private sale, with or 
without previous advertisement, is" a matter entirely discretionary therewith. 

Department of Justice, August 23, 1886. 

Sir: By your letter to the Attorney-General of the 14th ultimo 
attention is called to a communication received l)v you from the Com- 
missioner of the General Land Office, a copy of which was transmitted 
therewith, touching the disposition of a large quantity of timber 
alleged to have been unlawfully cut on the public lands in Montana 
Territory and which has recentl}' been seized as the property of the 
United States under instructions from that office, and the question 
presented for consideration is. Whether the Commissioner may "direct 
the sale of the propert}^ so seized; and, if so, whether it msiy be dis- 
posed of at private sale, and in such way as may be both to the advan- 
tage of the Government and to the benefit of the community, without 
advertising the same?" Having carefully examined this subject, I 
now beg to submit the following in reply: 

The question proposed seems to involve a preliminary inquiry, 



Sewure. 67 

namely, as to the authorit}^ of the officers of the Land Department to 
make seizure of timber unlawfully cut on the public lands. Upon 
this point I entertain no doubt. 

Congress has provided a remedy for the protection of the timber on 
the public lands by imposing certain penalties and forfeitures (see sec. 
2461 and 2462, Rev. Stat.; also sec. 3 of the act of June 3, 1878. chap. 
150, and sec. 4 of the act of June 3, 1878, chap. 151), which can only 
be enforced by indictment or information; and by section 2 of the act 
of April 30, 1878, chapter 76, it is further provided "that if any tim- 
ber cut on the public lands shall be exported from the Territories of the 
United States it shall be liable to seizure by United States authority 
wherever found. " 

But these statutor}^ remedies are not the only ones avaihible to the 
Government. In Cotton v. United States (11 How., 229) it was held 
that the United States have a right to bring an action of trespass 
quare clausum fregit against a person for cutting and carrying away 
trees from the pul)lic lands. Agreeably to the doctrine of that case 
the United States maj^ resort to the same civil remedies for the protec- 
tion of their property which are open to any other proprietor. Thus 
they may seize the timlier cut, arrest it by replevin, or recover dam- 
ages in trespass for the taking and conversion. (United States v. Cook, 
ly Wall. , 594.) These are the ordinary remedies given by the common 
law for the recovery of personal propert}" or its value. Seizure or 
recaption (which is one of them) is a remedy by the mere act of the 
party injured, and may be resorted to for the recovery of such property 
where its exertion will not endanger the public peace. (3 Black. 
Com., 4.) 

Authority to exert this remed\^ in behalf of the United States must 
be deemed to belong to the Commissioner of the General Land Office, 
under the supervision of the Secretary of the Interior, as a power 
included in the general duties respecting the public lands which are 
devolved upon him (sec. 453, Rev. Stat.). Such authority, indeed, has 
long been asserted and frequently exercised by the Land Department 
through its officers or agents, the latter acting under instructions issued 
by the Commissioner, with the sanction of the Secretary. Referring to 
this, the Supreme Court, in Wells v. Nickles(104 U. S.,447), observes: 

The Department of the Interior, under the idea of protecting from depredation 
timber on the lands of the Government, has gradually come to assert the right to 
seize what is cut and taken away from them wherever it can be traced. In aid of 
this the registers and receivers of the Land Office have, by instructions from the Sec- 
retary of the Interior, been constituted agents of the United States for these pur- 
poses, with power to appoint special agents under themselves. If any authority to 
do this was necessary, it may be fairly inferred from appropriations made to pay the 
services of these special timber agents. 

In that case a compromise by timber agents with a trespasser respect- 
ing the disposition of timber cut by him on the public lands and seized 



58 Seizure. 

by such agents, which was made in conformity to instructions of the 
Commissioner of the General Land Office, was held to be valid. This 
amounts to an affirmation of the authority of the Commissioner, through 
those agents, to act for the United States in matters connected with 
timber depredations on the public domain; and I think it safe to say 
that under such authority the remedy by recaption or seizure, as well 
as any other of the before-mentioned common-law remedies, may be 
resorted to for the recovery of timber unlawfully cut on the public 
lands, according to the circumstances of the case. While I entertain 
no doubt as to the existence of the remedy by seizure, yet its liability to 
abuse and to become an instrument of oppression demand that it should 
be used with judicious discretion and only in clear or emergent cases, 
and except in such cases the regular procedure of the courts should 
be preferred. 

As to the authorit}^ of the Commissioner to dispose of such timber 
by public or private sale, where the same has been seized by duly 
authorized agents of the Land Department and remains in their cus- 
tody, I apprehend that this power exists, subject to the general super- 
vision or direction of the Secretary of the Interior. There being no 
statutory provision covering a case of that kind, or regulating the dis- 
position of the property, it must be regarded as a subject left to the 
Land Department to be dealt with in such manner as in the judgment 
of that Department will best protect the interests of the Government. 
As the property is perishable in its nature, and its custody may involve 
expense, it is not only within the power but it is the duty of the 
Department, for the avoidance of loss to the Government, to convert 
the same into money; and whether this be done by public or private 
sale is a matter entirely discretionary with it. While ordinarily the 
public interests (which are always to be kept in view) will be best 
subserved by a public sale after advertisement, yet I perceive no 
objection, legal or other, to a private sale either with or without pre- 
vious advertisement, where the mode of disposal is advantageous to 
the Government, but as a general rule public sale should be had. 

In direct response to the question presented by you, I therefore sub- 
mit that, in my opinion, the Commissioner may direct the sale of the 
property seized, and that "it may be disposed of at private sale, and 
in such way as may be both to the advantage of the Government and 
to the benefit of the community without advertising the same." 
I am, sir, very respectfully, 

G. A. Jenks, 
Acting Attorney- General. 

The Secretary of the Interior. 



Seizure. 59 

Wells v. Nickles. 

(104 U. S.,444.) 

While no act of Congress expressly authorizes the Secretary of the Interior or other 
officer of the Land Department to appoint timber agents, the appropriation 
of money by Congress to pay them is a recognition of the validity of their 
appointment. 

Where the instructions of the Commissioner of the General Land Office directed the 
agents to seize and sell tind)er cut on the public lands, and also authorizes them 
to compromise with the trespasser on liis paying a reasonable compensation for 
the timber cut and taken away: Held, That a compromise so made by which he 
pays all the costs and expenses of the seizure, and gives bond to pay for the 
timber when its value shall be ascertained, pursuant to the agreement, is bind- 
ing on the United States. 

This compromise, should, in violation of its terms, the jaroperty be seized and sold 
by such agents, is evidence of his title and right of possession in his action 
against their vendee for the recovery of the property. 

(Act of Apr. 80, 1878; 20 Stat., 46.) 

Sec. 2. * * * Ami jyrovlded furtlie)\ That if uii}^ timber cut on the 
pu])lic lands shall be exported from the Territories of the United States, 
it shall be liable to seizure b}'^ United States authority wherever found. 

Thomas Stephenson v. William L, P. Little and others. 

Supreme court of Michigan (10 Mich. Rep., 433). 



The General Government has all the common-law rights of an individual in respect 
to depredations committed upon the public lands, and the Commissioner of the 
General Land Office — being the proper executive department to enforce those 
rights — in the absence of legislation by Congress on the subject — may lawfully 
direct the seizure and sale by the local land officers, on behalf of the Govern- 
ment, of timber cut by trespassers on the public lands. 

The party guilty of a fraudulent admixture of saw logs owned by himself with those 
owned by another, so that it is impossible any longer to identify his own, loses 
all interest in them, and is remediless if such other person appropriate the whole 
mass to his own use. Per Manning, jr., Christiancy, J., concurring. Campbell, 
J., dissented, holding that where the evidence showed the logs to be of a uniform 
value per thousand feet the person who had intermingled them was entitled to 
reclaim from the common mass an equivalent to his own logs. Martin, Ch. J., 
gave no opinion on this question. 

Per Martin, Ch. J. : The person whose property another has fraudulently admixed 
with his own has the right to take possession of the whole mass for the purpose 
of separating and securing, or of disposing of, the portion belonging to himself; 
and if it can not be separated, and he advertise and sell his interest in the whole, 
he does not thereby render himself liable to the other for the conversion of his 
property. He has at the very least, as respects the property so commingled, the 
rights of a tenant in common. 



60 Seizure — Timher on Indian Lands. 

NORRIS ET AL. V. UnITED StATES. 

Circuit court, western district of Louisiana (44 Fed. Rep., 735). 

Action for Timber Cut on Public Land — Burden of Proof. 

Where in an action by the United States to recover the vakie of logs cut on 
public land the plaintiff's evidence shows that the defendant purchased from the 
trespasser and converted to his own use a large num];)er of logs, among whicli 
were some of those cut from the pubHc land, the burden is on the defendant to 
show that all the logs so bought by him were not so cut. 

Confusion of Goods. 

Where the logs so cut were mixed in the river with a large quantity of other 
logs, so that the identical logs could not be conveniently sejiarated, the United 
States thereby acquired a proportionate interest in the entire mass of logs, under 
Rev. Civil Code La., art. 528, which provides that "when a thing has been 
formed by a mixture of materials belonging to different proprietors, * * * if 
the materials can not be separated without inconvenience, their owners acquire 
in common the pro rata of the thing." 

HaNDFORD ET AL V. UnITED StATES. 

Circuit court of appeals, eighth circuit (92 Fed. Rep., 88). 

United States — Action to Recover Logs. 

Where the United States claims the ownership of logs in the possession of 
another, on the ground that they were cut from Government land, its remedy, like 
that of an individual, is by an action of replevin or trespass. It can not seize the 
logs from one having them in his possession, and, by filing a libel against them, 
cast upon him the burden of proving his ownership, and a district court is 
without jurisdiction of such a proceeding. 

United States v. Price Trading Company et al. 

Circuit court of appeals, eighth circuit (109 Fed. Rep., 239). 



Timber Wrongfully Cut — Subsequent Sale for Authorized Use. 

Where timber has been wrongfully cut from public lands of the United States, 
and while in the hands of a purchaser has been claimed as the property of the 
United States by its agent, the title of the Government can not be divested by a 
subsequent sale of the timber by such purchaser to a railroad company for use 
in the construction of its road, although the company would have had the right 
to cut it for such purpose had it been standing. 

TIMBER UNLAWFULLY CUT ON INDIAN LANDS. 
(19 Op., p. 710.) 

Where a large quantity of standing timber (about 4,000,000 feet) was unlawfully cut 
by tresspassers on the Fond du Lac Indian Reservation, in Minnesota, and left 
lying thereon — the land from which the timber was cut being held in common by 
the Indian bands for whom it was reserved by the ordinary Indian title: Advised^ 

(1) that the United States have the absolute ownership of the timber thus cut; 

(2) that the Indians have no interest therein whatever, and that it in no way 
appertains to the Indian Bureau or its agents to assume charge thereof; (3) that 
such timber may be sold for and on account of the United States, but that sale 



Sawmills on Public Lands — Cut Timber. 61 

should be made by the Commissioner of the General Land Office, under the 
supervision of the Secretary of the Interior. Opinion of Acting Attorney-Gen- 
eral Jenks of August 23, 1886 (18 Op., 434), concurred in. (See p. 56. ) 

See United States v. Cook (19 Wall., 591), cited on page 62. 
See, also, "Timber on Indian allotments and Indian reservations" 
(19 Op., p. 232), cited on page 149. 

SAWMILLS ON PUBLIC LANDS. 

[Acting Commissioner of General Land Office to Secretary of tlie Interior, Marcli 2, 1886, in case of 
public timber trespass by Robert H. Longwell, Colorado.] 

* * * I have to state that I am not aware of any statute expressly 
authorizing the seizure and sale of sawmills erected on the public domain 
by timber depredators or intruders thereon, but I am of the opinion 
that the title to such mills should be held to be in the United States 
under the principle of common law which gives to the owner of real 
estate all houses, fixtures, and other improvements placed thereon by 
strangers without the knowledge and consent of such owner. The 
depredator in this case had no color of right or title to the land nor 
license to go upon the same, and the mill was erected thereon without 
authority. As soon as the material was attached to the land it became 
a part of the realty, and the title passed to the Government. (See 
Sedgwick and Tait on Trial of Titles to Land, pp. 361, 690, and Gerald 
Real Estate, p. 107.) 

I would suggest, as the United States attorney expresses doubt as to 
whether the mill can be seized prior to the termination of the suit for 
the trespass, that the parties be restrained by injunction from removing 
the mill and appurtenances from the land pending the determination 
of the suit for damages. 

See Erhardt v. Boaro and others, cited on page 6'4. 

CUT TIMBER. 

NOT A PART OF THE REALTY. 
SCHULENBERG ET AL. V. HaRRIMAN. 

(21 Wall., 44.) 

******* 

Where the title to land remains in tlie State, timber cut upon the land belongs to the 
State. Whilst the timber is standing it constitutes a part of the realty; being 
severed from the soil, its character is changed; it becomes personalty, but its 
title is not affected; it continues as previously the property of the owner of the 
land, and can be pursued wherever it is carried. All the remedies are open to 
the owner which the law affords in other cases of the wrongful removal or con- 
version of personal property. 

Where logs cut from the lands of the State without license have been intermingled 
with logs cut from other lands, so as not to be distinguishable, the State is enti- 
tled, under the law of Minnesota, to replevy an equal amount from the whole 
mass. The remedy afforded by the law of Minnesota in such case held to be 
just in its operation and less severe than that which the common law would 
authorize. 



62 Cut Timher — Right of Occupancy. 

HUTCHINS ET AL. V. KiNG. 

(1 Wall., 53.) 

Growing timber constitutes a portion of the realty, and is embraced by a mortgage 
of the land. When it is severed from the freehold without the consent of the 
mortgagee, his right to hold it as a portion of his security is not impaired. 

When the amount due according to the stipulation of the mortgage is paid, the lien 
of the mortgage upon the timber thus severed is discharged, and the property 
reverts to the mortgagor, or any vendee of the mortgagor. Any sale of the 
timber by the mortgagee, or assignee of the mortgagee, after such payment is a 
conversion for which an action will lie by the mortgagor or his vendee. 



D. cut and piled posts on lands belonging to the State. While he 
was thus engaged R. purchased the land, and afterwards replevied the 
posts, some of which were cut before and some after the purchase. 
Ileld^ that R. had no title to those cut prior to his purchase. (United 
States Digest, Vol. II, p. 590 (1869); Rogers v. Bates, 1 Mich. (N. P.), 93.) 

The sale of standing timber is the sale of an interest in real estate, 
and a subsequent purchaser by warrant}^ deed of the land with notice 
of such sale can not maintain trespass against the prior purchaser of 
the timber for cutting and removing the timber. (United States 
Digest, Vol. VII, p. 839; Russell v. Meyers, 32 Mich., 622.) 

USE OF CUT TIMBER BY VIRTUE OF A RIGHT OP OCCUPANCY. 

United States v. Cook. 

(19 Wall., 591.) 

Timber standing on lands occupied by the Indians can not be cut by them for the 
purposes of sale alone; though when it is in their possession, having been cut 
for the purpose of improving the land — that is to say, better adapting it to con- 
venient occupation — in other words, when the timber has been cut incidentally 
to the improvement, and not cut for the purpose of getting and selling it — there 
is no restriction on the sale of it. 

The Indians, having only a right of occupancy in the lands, the presumption is 
against their authority to cut and sell the timber. Every purchaser from them 
is charged with notice of this presumption. To maintain his title it is incum- 
bent on him to show that the timber was rightfully severed from the land. 

The United States may maintain an action for unlawfully cutting and carrying away 
timber from the public lands. 

The Chief Justice delivered the opinion of the court: 
We think the action was properly brought, and that it may be 
maintained. 

The right of the Indians in the land from which the logs were taken 
was that of occupancy alone. They had no power of alienation except 
to the United States. The fee was in the United States, subject only 
to this right of occupancy. This is the title by which other Indians 
hold their lands. It was so decided by this court as early as 1823 in 



Cat Tuiihci — Eight of Occujpancy. <^3 

Johnson i\ Mcintosh." The authority of that case has never been 
doubted.* The right of the Indians to their occupancy is as sacred as 
that of the United States to the fee, but it is onl}^ a right of occu- 
pancy.'^ The possession when abandoned by the Indians attaches itself 
to the fee without further grant. '^^ 

This right of use and occupancy by the Indians is unlimited. They 
may exercise it at their discretion. If the lands in a state of nature 
are not in a condition for profitable use, they may be made so. If 
desired for the purposes of ag-riculture, the}^ may be cleared of their 
timber to such an extent as may be reasonable under the circumstances. 
The timber taken off b}" the Indians in such clearing may be sold by 
them. But to justify any cutting of the timber, except for use upon 
the premises, as timber or its product, it must be done in good faith for 
the improvement of the land. The improvement must be the principal 
thing, and the cutting of the timber the incident only. Any cutting 
bej^ond this would be waste and unauthorized. 

The timber while standing is a part of the realty, and it can only l^e 
sold as the land could be. The land can not be sold by the Indians, 
and consequently the timber, until rightfullj^ severed, can not be. It 
can be rightfully severed for the purpose of improving the land, or the 
better adapting it to convenient occupation, but for no other purpose. 
When rightfully severed it is no longer a part of the land, and there is 
•no restriction upon its sale. Its severance under such circumstances 
is, in effect, only a legitimate use of the land. In theory, at least, the 
land is better and more valuable with the timber off than with it on. 
It has been Imjyroved by the removal. If the timber should be severed 
for the purposes of sale alone — in other words, if the cutting of the 
timber was the principal thing and not the incident— then the cutting 
would be wrongful, and the timber when cut become the absolute 
property" of the United States. 

These are familiar principles in this country and well settled, as 
applicable to tenants for life and remainder-men. But a tenant for life 
has all the rights of occupancy in the lands as a remainder-man. The 
Indians have the same rights in the lands of their reservations. What 
a tenant for life may do upon the lands of a remainder-man the Indians 
may do upon their reservations, but no more. 

In this case it is not pretended that the timber from which the saw 
logs were made was cut for the purpose of improving the land. It 
was not taken from any portion of the land which was occupied, or, so 
far as appears, intended to be occupied for any purpose inconsistent 
with the continued presence of the timber. It was cut for sale and 
nothing else. Under such circumstances, when cut, it became the 

«8 Wheaton, 574. 

&1 Kent, 257; Worcester r. Georgia, 6 Peters, 580. 
c Cherokee Nation v. Georgia, 5 Peters, 48. 
^Ib., 17. 



64 Right of Occupancy — Injunction. 

property of the United States absolutely, discharged of any rights of 
the Indians therein. The cutting was waste, and in accordance with 
well-settled principles the owner of the fee may seize the timber cut, 
arrest it by replevin, or proceed in trover for its conversion. 

The Indians having only a right of occupancy in the lands, the pre- 
sumption is against their authority to cut and sell the timber. Every 
purchaser from them is charged with notice of this presumption. To 
maintain his title under his purchase it is incumbent on the purchaser 
to show that the timber was rightfully severed from the land. 

That the United States may maintain an action for cutting and 
carrying away timber from the public lands was decided in Cotton v. 
United States." The principles recognized in that case are decisive 
of the right to maintain this action. 

The answer of the court, therefore, to the question propounded by 
the circuit court, is in the affirmative. 

See 19 Op. , 710, cited on page 60. 

See also 19 Op., 232, cited on page 149. 

INJUNCTION. 

Erhardt v. Boaro and others. 

Ajjpeal from the circuit court of the United States for the district of Colorado (113 

U. S. 537). 

Mr. Justice Field delivered the opinion of the court: 
* * * It is now a common practice in cases where irremedial 
mischief is being done or threatened, going to the destruction of the 
substance of the estate, such as the extracting of ores from a mine, or 
the cutting down of timber, or the removal of coal, to issue an injunc- 
tion, though the title to the premises be in litigation. The authority 
of the court is exercised in such cases, through its preventive writ, to 
preserve the propert}^ from destruction pending legal proceedings for 
the determination of the title. (Jerome v. Ross, 7 Johns., ch. 315, 
332; Le Roy v. Wright, 4 Sawyer, 530, 585.) 

Nichols v. Jones and another. 

Circuit court northern district of Alabama (19 Fed. Rep., 855). 

iN.ItTNCTION. 

Injunctions are granted to prevent trespasses as well as to stay waste where 
the mischief would l)e irreparable, and to jirevent a multiplicity of suits. 

Wilson and others -v. Rockwell and others; 

Circuit court district of Colorado (29 Fed. Rep., 674). 

Injunction — Trespass — Title. 

A party showing an equitable title to realty will be protected against tres- 
passers by injunction, though the location of the legal title has not been finally 
determined. 

«11 Howard, 229. 



Injxinction — Institution of Cwil Proceedings. 65 

Theodore Le Roy v. George Wright et al. 

Circuit court northern district of California (4 Sawyer, 530). 
«- ***** * 

CouETS OF Equity will not Interfere. 

Courts of equity will not ordinarily interfere to injoin the commission of a 
threatened trespass to real property unless the trespass be one going to the 
destruction of the substance of the estate, such as the extracting of ores, the 
cutting down of timber, the digging of coal, and the like. The jurisdiction of 
the court in such cases is asserted for the preservation of the property pending 
proceedings at law for the determination of the title. 

United States tu Gear. 

(3 Howard, 120.) 
* * * * * * * 

Digging lead ore from the lead mines upon the public lands of the United States is 
such a waste as entitles the United States to a writ of injunction to restrain it. 

INJUNCTION TO STA Y WASTE. 

An injunction to stay waste is allowed as a matter of course. (United 
States Digest, Vol. I, p. 401 (1863); Markham v. Howell, 33 Ga., 508.) 

Mines, quarries, and timber are protected by injunction, upon the 
ground that injuries and depredations upon them are or msiy cause 
irreparable damage, and also with a view to prevent a multiplicity of 
actions for damages that might accrue from a continuous violation of 
the rights of the owners. In such cases the plaintiff's right need not 
be first established at law. (United States Digest, Vol. Ill, p. 359 
(1871); West Point Iron Co. v. Reymert, 45 N. Y., 703.) 

The unlawful quarrying and removal of stone wherein consists the 
chief value of land may be restrained by injunction. (United States 
Digest, Vol. XVI, p. 347; Althen v. Kelly, 32 Minn., 280.) 

Entry on land and digging up and removing fruit trees thereon is 
waste which may be enjoined. (United States Digest, Vol. XVI, p. 347; 
Silva V. Garcia, 65 Cal., 591.) 

An injunction will be granted to stay waste threatened or being com- 
mitted. (United States Digest, Vol. XVII, 337; Sheridan v. McMullin, 
12 0reg., 150.) 

INSTITUTION OF CIVIL PROCEEDINGS. 

No civil proceedings in connection with timber trespasses on public 
lands should be instituted in the name of the United States without 
instructions from the proper authority. See the following letter and 
the subjoined regulations of the Solicitor of the Treasury referred to 

therein: 

Department of Justice, 
Washington, D. C, September 16, 1895. 
Sir: I liave the honor to acknowledge the receipt of your letter of tlie 12th instant, 
in which you request that reply may be made to certain inquiries contained in a 

21150—03 5 



66 Civil Proceed bigs — Regidations of Solicitor' of tlie Treasury. 

letter of the Acting Commissioner of the General Land OfSce (a copy whereof you 
inclose) in regard to the institution of civil proceedings in timber trespass cases by 
United States district attorneys in the various States and Territories without recom- 
mendation from the Department of the Interior or instructions from this Department. 

(1) Considering the several inquiries in their order, I beg to state that I was not 
aware, until informed by the said letter of the Acting Commissioner, of his office 
having received information to that effect, that United States attorneys, or any 
United States attorney, had instituted civil actions for timber trespass without the 
recommendation or instructions referred to. By the first paragraph of the regula- 
tions made by the Solicitor of the Treasury, with the approbation of the Attorney- 
General, for the observance of United States attorneys and marshals, whicli regula- 
tions are embodied in the pamphlet of "Instructions to United States Marshals, 
Attorneys, Clerks, and Commissioners," issued by the Attorney-General July 1, 1895, 
it is provided that, except in extraordinary cases of emergency, no United States 
attorney will commence or defend a civil suit or proceeding in court, in the name or 
for the benefit of the United States, without instructions from the office of the Solici- 
tor of the Treasury, or by direction of the Attorney -General, or some person or court 
authorized by law so to direct. This provision is found upon pages 52 and 53 of said 
pamphlet, a copy of which I have the honor to hand you herewith. 

(2) Should civil action be commenced by a United States attorney, in disregard of 
said regulation, it would not, in my opinion, render the action void, or jeopardize 
the interests of the United States involved therein, but would constitute merely a 
violation of a departmental regulation, and not a violation of law. 

(3) It is not now, and so far as I have been able to ascertain, it has not been the 
practice of this Department to direct the institution of civil proceedings in timber 
trespass cases, except upon the recommendation of the Department of the Interior. 

Respectfully, 

JuDSON Harmon, Attorney-General. 
The Secretary op the Interior. 



REGULATIONS OF THE SOLICITOR OF THE TREASURY. 

The following are regulations prescribed by the Solicitor of the 
Treasury under authority of sections 377 and 379, Revised Statutes, 
which must be fully and carefully complied with: 

1. No United States attorney will commence or defend a civil suit or proceeding in 
court, in the name or for the benefit of the United States, without instructions from 
this office or by direction of the Attorney-General or some person or court authorized 
by law so to direct, except in extraordinary cases, where some material interest of 
the United States would, in his opinion, be lost or endangered by delay; and in such 
cases, he will immediately report his action with his reason therefor. 

2. Whenever a TTnited States attorney shall receive from a jjublic officer, or shall 
in any other mamier become possessed of information which shall lead him to believe 
that a trespass upon the property of the United States, or an infraction of its reve- 
nue or other laws, has been committed, he will immediately report such information 
to this office, with his opinion as to the propriety of instituting suit; or in case the 
remedy of the United States would, in his opinion, be lost or endangered by delay, 
he may immediately commence a suit, and report the same, with his reason for such 
proceeding. 



Act of June 3, 1878 {W Stat, 88). 67 

TIMBER ON MINERAL LANDS. 

Mineral lands are those which are more valuable for the mineral 
therein (except coal) than for agricultural purposes or for the timber 
thereon. 

The right to take timber from mineral lands for building, agricul- 
tural, mining, or other domestic purposes is specially provided for by 
the following act of Congress: 

[Act of June 3, 1878, Chap. 150; 20 Stat., 88.] 

AN ACT authorizing the citizens of Colorado, Nevada, and the Territories to fell 
and remove timber on the public domain for mining and domestic purposes. 

Be it enactedhy the Senate and House of Representatives of the United 
States of xhn erica in Congress osseirMed^ That all citizens of the United 
States and other persons, bona fide residents of the State of Colorado 
or Nevada, or either of the Territories of New Mexico, Arizona, Utah, 
Wyoming, Dakoto, Idaho, or Montana, and all other mineral districts 
of the United States, shall be, and are hereby, authorized and per- 
mitted to fell and remove, for building, agricultural, mining, or other 
domestic purposes, any timber or other trees growing or being on the 
public lands, said lands being- mineral, and not subject to entry under 
existing laws of the United States, except for mineral entry, in either 
of said States, Territories, or districts of which such citizens or persons 
may be at the time bona fide residents, subject to such rules and regu- 
lations as the Secretary of the Interior may prescribe for the protection 
of the timber and of the undergrowth growing upon such lands, and 
for other purposes: Provided^ The provisions of this act shall not 
extend to railroad corporations. 

Sec. 2. That it shall be the duty of the register and the receiver of 
any local land office in whose district an}^ mineral land maj" be situated 
to ascertain from time to time whether any timber is being cut or used 
upon any such lands, except for the purposes authorized by this act, 
within their respective land districts; and, if so, they shall immediately 
notify the Commissioner of the General Land Office of that fact; and 
all necessary expenses incurred in making such proper examinations 
shall be paid and allowed such register and receiver in making up their 
next quarterly accounts. 

Sec. 3. Any person or persons who shall violate the provisions of 
this act, or any rules and regulations in pursuance thereof made by the 
Secretary of the Interior, shall be deemed guilt}" of a misdemeanor, 
and, upon conviction, shall be fined in any sum not exceeding five hun- 
dred dollars, and to which ma}^ be added imprisonment for any term 
not exceeding six months. 



68 Act ofJmie 3, 1878 {20 Stat., 88). 

CIRCULAR. 
(29 L. D., 571.) 

rules and regulations governing the use of timber on public 

mineral lands. 

Department of the Interior, 

General Land Office, 
Washington, D. C. , January 18., 1900. 
By virtue of the power vested in the Secretary of the Interior by 
the first section of the act of June 3, 1878, entitled "An act authoriz- 
ing the citizens of Colorado, Nevada, and the Territories to fell and 
remove timber on the public domain for mining and domestic pur- 
poses," the following rules and regulations arc hereby prescribed: 

1. The act applies to the States of Colorado, Nevada, Montana, 
Idaho, Wyoming, North Dakota, South Dakota, and Utah, and the 
Territories of New Mexico and Arizona, and all other mineral districts 
of the United States. 

2. The land from which timber may be felled or removed under the 
provisions of this act must be known to be of a strictly mineral char- 
acter and "not subject to entry under existing laws of the United 
States, except for mineral entiy." Parties who take timber from the 
public lands under assumed authority of this act must stand prepared to 
show that their acts are within the prescribed terms of the law grant- 
ing such privilege, the burden being on such parties of proving by a 
preponderance of evidence that the land from which the timber is 
taken is "mineral" within the meaning of the act. 

3. The privileges granted are confined to citizens of the United States 
and other persons, hmafide residents of the States, Territories, and 
other mineral districts provided for in the act. 

4. The uses for which timber may be felled or removed are limited 
by the wording of the act to ' ' building, agricultural, mining, or other 
domestic purposes." 

5. No timber is permitted to be felled or removed for purposes of 
sale or trafiic, or to manufacture the same into lumber or other timber 
product as an article of merchandise, or for any other use whatsoever, 
except as defined in section 4 of these rules and regulations. 

6. No timber cut or removed under the provisions of this act may 
be transported out of the State or Territory where procured. 

7. No timber is permitted to be used for smelting purposes, smelt- 
ing being a separate and distinct industry from that of mining. 

8. No growing trees of an}^ kind whatsoever less than eight inches 
in diameter are permitted to be cut. 

9. Persons felling or removing timber under the provisions of this 
act must utilize all of each tree cut that can be profitably used, and 
must dispose of the tops, brush, and other refuse in such manner as to 
prevent the spread of forest fires. 



Act of June 3, 1878 (20 Stat, 88). 69 

10. These rules and regulations shall take effect Februar}^ 15, 1900, 
and all existing rules and regulations heretofore prescribed under said 
act by this Department are hereby rescinded. 

TV. A. Richards, 

Acti7ig Commissioner. 
Approved, Januar}" IS, 1900. 

E. A. Hitchcock, Secretary. 



FORCE AND EFFECT OF RULES AND REGULATIONS BY THE SECRE- 
TARY OF THE INTERIOR UNDER THE ACT OF JUNE 3, 1878 {20 
STAT., 88). 

{<() The rules and regulations as to the cutting of timber upon the 
public lands of the United States prescribed by the Secretary of the 
Interior under laws. United States, Forty-fifth Congress, second ses- 
sion, chapter 150, will be considered such an act of the executive 
department of the United States as the courts will take judicial notice 
of under Revised Statutes, Montana, division 1, section 025; and it is 
not necessary to set out such rules in a complaint seeking to recover 
for an infringement thereof. 

(J) Said law is constitutional, and the rules and regulations of the 
Secretaiy of the Interior made thereunder are not unconstitutional 
as trenching upon the domain of the legislative department of the 
Government. 

{c) In the absence of any statutory license in the matter, the cutting 
of timber less than 8 inches in diameter constitutes a trespass. (See 
Land Office Report for 1887, p. 479, case of United States v. Williams 
and another; 6 Mont., 379.) 

At the September term, 1886, of United States district court, Boise 
City, Idaho, Judge Broderick presiding, four Chinamen (Wing Ling, 
Ah Sin, et al.) were convicted of timber trespass on the public mineral 
lands for failing to utilize all of each tree cut that could profitably be 
used, and to take precautions to guard against the spread of forest 
fires, as required by Department regulations, under the act of June 3, 
1878. (Circular, August 5, 1886, section 8; see Land Office Report 
for 1887, p. 480.) 

United States v. Reder. 

District court, South Dakota (69 Fed. Rep., 965). 

PcjBLic Lands — Cutting Timber from Mineral Lands — Indictment. 

On the trial of an indictment for cutting timber from the mineral lands of the 
United States for purposes other than those connected with building, agricul- 
tural, mining, or other domestic uses contrary to the act of June 3, 1878, the 
intent is wholly immaterial, and it is only necessary to show that the prohibited 
acts were done. 



70 Act of June 5, 1878 {W Stat., 88). 

Same — Regulations by Secretary of the Interior. 

One who cuts and removes timber from the mineral lands of the United States 
and sells the same, or the lumber manufactured therefrom, without taking from 
the purchaser any statement in writing as to the purposes for which the same is 
intended to be used, as required by the regulations made by the Secretary of the 
Interior under the authority of the act of June 3, 1878, is guilty of a violation 
of that statute and subject to the penalties prescribed by it. 

United States v. Madison A. Tipton. 

United States circuit court, South Dakota, western division. 
INSTRUCTIONS OF THE COURT, FEBRUARY 18, 1896. 

Hon. A. D. Thomas, Presiding Judge: 

It is charged in the indictment that Madison A. Tipton committed 
the offense set forth, on the 3d day of August, 1894, in Pennington 
County. 

I wish, in the first place, to advise j^ou that the date alleged in the 
indictment, the 3d day of August, 1894, is not material when j^ou come 
to consider the proof. When you come to the proof, it is not necessary 
to show that the offense, if any was committed, was in fact committed 
on that particular da}^ alleged in the indictment. The indictment was 
found and filed in this court the 25th of September, 1895, and if you 
find that an offense was in fact committed, and committed within three 
years prior to that time, to wit, the 25th day of September, 1895, that 
answers the purpose of the statute and the rule of law. 

In order that you may definitely understand the issues which j^ou 
have to find — which you have to determine — I will read the indictment, 
or that portion which is material. It is charged that "Madison A. 
Tipton, late of Pennington Count}^, in said district, on the 3d day of 
August, 1894, at Pennington County, unlawfully did cut, cause, and 
procure to be cut a large amount of timber, to wit, a large number of 
pine trees then and there growing and being on the public lands of the 
United States, the said trees then and there being and growing in one 
of the public-land districts of the United States of America, to wit, 
the State of South Dakota, with the intent then and thei'e to export 
the same from the State of South Dakota, and with the intent then 
and there to dispose of the same contrary to the form, force, and effect 
of the statutes of the United States in such case provided, and con- 
trary^to the rules and regulations in pursuance thereof made by the 
Secretary of the Interior." 

You will notice that the gist of the offense charged is the intent; 
that is, the gist of the offense is that he cut, caused, and procured to 
be cut timber, as charged, with the intent, first, to export it out of the 
State of South Dakota, and, second, to dispose of it contrary to the 
statute and the rules prescribed by the Secretary of the Interior. 

To this indictment the defendant has interposed the plea of not 



Act of June 3, 1878 {20 Stat., 88). 71 

guilty, and by that plea has put the prosecution to the proof of all the 
material allegations of the indictment with that degree of certainty 
required in all criminal cases. 

The indictment seems to have been drawn under section 4, chapter 
151, found in the Supplement of the Statutes of the United States, and 
reads as follows, or that portion which is material for us at present: 

"That after the passage of this act'' (that was June, 1878) " it shall 
be unlawful to cut, or cause or procure to be cut, or wantonly destro}^ 
any timber growing on any of the lands of the United States in said 
States and Territories" (and 1 would say that this law, by another law, 
is made applicable to the State of South Dakota. Understand me, this 
law which I now read is made applicable to this State by law of Con- 
gress), " or remove, or cause to be removed, an}^ timber from said public 
lands with intent to export or dispose of the same." And then provides 
for punishment and conviction. 

The charge in this indictment is cutting, causing and procuring to be 
cut, with the intent stated in the indictment. 

Now, it has been shown by the evidence on the part of the Govern- 
ment that these lands from which the timber was alleged to have been 
taken and cut, or rather cut, were mineral lands of the United States, 
and therefore it is proper for me to read you another law, which rnust 
be taken in connection with the statute which I have just read. That is 
the law of June 3, 1878, found in 20 Statutes at Large, 88, chapter 150: 

"That all citizens of the United States and other persons bona fide 
residents of the States of Colorado," etc. (including Dakota), "and all 
other mineral districts of the United States shall be, and are hereby, 
authorized and permitted to fell and remove for building, agricultural, 
mining, or other domestic purposes any timber or other trees growing 
or being upon the public lauds, said lands being mineral and not sub- 
ject to entry under existing laws of the United States except for min- 
eral entry, in either of said States, Territories, or districts of which 
such citizens or persons may be at the time bona lide residents, subject 
to such rules and regulations as the Secretary of the Interior may pre- 
scribe for the protection of the timber and of the undergrowth growing 
upon such lands, and for other purposes." 

It is provided in section 3 of the act which I have just read as 
follows: 

"Any person or persons who shall violate the provisions of this act 
or any rules and regulations in pursuance thereof made by the Secre- 
tary of the Interior shall be deemed guilty of a misdemeanor," and 
upon conviction shall be punished as prescribed in that statute. 

The law is that it is competent for the Congress of the United States 
to provide in this class of cases as well as others, and it has been the 
constant practice of Congress to provide that the head of the Depart- 
ment, in this case the Secretary of the Interior, shall make rules and 



^2 Act of June 3, 187 S {W Stat. , 88). 

regulations for the proper carrying out of the law, the proper execu- 
tion of it, provide various details, and when the rules and regulations 
of the head of the Department, in this case the Secretary oi the Inte- 
rior, are made pursuant to the law they have the force and effect of 
law, become a part of the law. 

While from section 4, which I first read, it would be a violation of 
the statute to cut or cause to be cut tim]>er with the intention to export 
or dispose of the same, the law I just read — that is, the mineral law so 
called — permits certain persons to cut and remove timber from the 
mineral lands under certain conditions. It is necessary to remember 
what those conditions are. In other words, under section 4, which I 
first read, it is an offense to cut and remove timber, as you have heard 
there, with the intent to export or dispose of it contrary to the statute, 
contrary to the law which you have heard there. Now, the Govern- 
ment has granted a license to certain parties on certain conditions to 
cut timber and procure it to be cut upon the mineral lands of the 
United States, as in the statute I have read to 3"ou. 

You will have to remember and consider whether this timber, if 
caused or procured to be cut, was cut under the regulations prescribed 
by this statute, and in accordance with certain rules of the Secretary 
of the Interior, to which I will call your attention. 

First, who are the persons that may cut? Citizens of the United 
States, and other persons, bona fide residents of the State of South 
Dakota. They are authorized and permitted to fell and remove, for 
what? For building, for agricultural, for mining, or other domestic 
purposes. If upon the mineral lands of the United States, as therein 
designated, subject to such rules and regulations as the Secretary of 
the Interior may prescribe for the protection of the timber and 
undergrowth, and for other purposes. 

The Government owns these lands; it owned them at the time stated 
in the indictment, and it had a right to provide that no person should 
go upon those lands and cut or procure to be cut any timber for any 
purpose. It had a right to do that; but it saw fit to grant a license to 
certain persons under certain conditions by which timber might be 
cut, or some portion of it, as you have heard. The Government giving 
that license had a right to prescribe the conditions under which per- 
sons could exercise that license. Therefore it has, as you have heard, 
prescribed certain conditions designated in the statute, and it is therein 
provided that cutting, removing, etc., must be subject to the rules and 
regulations prescribed by the Secretary of the Interior. 

Now, the Secretary of ttie Interior has prescribed certain rules. 
Two of those rules I will read and call your attention to. The courts 
and juries take judicial notice of those rules. They need not be proven 
as a part of the evidence. We take notice of them as of the law when 
made pursuant to the authority of Congress. I advise you these rules 
are made by the Secretar}^ of the Interior pursuant to an act of Congress. 



Act of June 3, 1878 {W Stat, 88). 73 

The first is rule 3: '"'No person not a citizen or bona fide resident of 
a State, Territor}^, or other mineral district provided for in said act is 
permitted to fell or remove timber from mineral lands therein." (No 
person not a citizen or bona fide resident of the State.) "And no per- 
son, firm, or corjDoration felling or removing timber under this act 
shall sell or dispose of the same, or the lumber manufactured there- 
from, to any other than citizens and bona fide residents of the State 
and Territor}' where such timber is cut, nor for any other purpose than 
for the legitimate use of said purchaser for the purposes mentioned in 
said act," namely, for building, mining, agriculture, or other domestic 
purposes. 

Rule 4: " Every owner or manager of a sawmill or other person fell- 
ing or removing timber under the provisions of this act shall keep a 
record of all timber so cut and removed, stating time when cut, names 
of parties cutting the same, or in charge of the work, and describing 
the land from whence cut by legal subdivisions if surveyed, and as near 
as practicable if not survej^ed, with a statement of the evidence upon 
which it is claimed that the land is mineral in character, and stating 
also the kind and quantity of lumber manufactured therefrom, togetlier 
with the names of parties to whom an}" such timber or lumber is sold, 
dates of sale, and the purposes for which sold; and shall not sell or 
dispose of such timber, or lumber made from such timber, without 
taking from the purchaser a written agreement that the same shall not 
be used except for building, agricultural, mining, or other domestic 
purposes within the State or Territory; and ever}^ such purchaser shall 
further be required to file with said owner or manager a certificate, 
under oath, that he purchases such timber or lumber exclusively for 
his own use, and for the purposes aforesaid." 

Now, you have noticed as I have read to you and called 3^our atten- 
tion to the statute, that by section 3 ' ' any person or persons who shall 
violate the provisions of this act, or any rules and regulations in pur- 
suance thereof, made by the Secretar\" of the Interior, shall be deemed 
guilty of a misdemeanor," and punished as provided by law. As I said 
to you, the gist of the crime charged, the gist of the offense alleged, is 
the intent with which it was done, if at all, by the defendant. The 
question whether he intended to violate the law or not is not material. 
The question is, Did he cut, or cause or procure to be cut, timber with 
the intent to export or dispose of it contrary to law, as I have read it 
to you? That is the gist of the question. He had no right to cut for 
speculative purposes. If he cut at all it must be in accordance with 
the law and license of the Government. 

That is a question for j^ou to determine. Did the defendant cut, or 
cause or procure to be cut, timber on the mineral lands? Naturally, 
did he cut it himself, or cause it to be cut, or procure it to be cut? 
This is one question of fact that on the very threshold, from the evi- 
dence of this action, vou will have to determine. 



74 Act of June 3, 187S {20 Stat, 88). 

In this case, as generally, it is not practicable, or possible, often, to 
get direct evidence of an ultimate fact. Perhaps nobod}" saw the act 
done. So the jury, in this class of cases, as 3^ou do in jonr various 
affairs of life, draw inferences and conclusions — such conclusions and 
inferences as you think ought to be drawn from all the facts and cir- 
cumstances established to your satisfaction. Take the evidence that 
you had before you; when you become satistied, if you do, that it is 
true and reliable, draw such inferences as to whether or not this 
defendant cut or caused or procured somebody else to cut this timber 
for the purposes that he was manufacturing it, if you find he was 
manufacturing any timber; then the fair and reasonable inference. 
Draw such inferences as you think ought to be drawn. 

If you lind from the evidence that he cut, caused or procured to be 
cut, timber, then jou come to the main question, With what intent did 
he cut it? Now, it is impossible to get into the human mind for the 
purpose of seeing the workings of the mind. If we could obtain 
access to it we would know but little about it. You must get at the 
intent in this case, as you do in every case of the kind — from the acts, 
from the circumstances that surround tbe matter — and then draw such 
conclusions as you think ought to be drawn from the facts and cir- 
cumstances established to your satisfaction; draw such conclusions as 
to what the intent was. Because it is a lawsuit and because you have 
taken upon j^ourselves the oaths of jurors you do not surrender your 
common sense, your good judgment, your reasoning powers. You 
carry them into the jury box and everywhere you go; in your jury 
box, as in your various business relations of life, you are to use 
them and appropriate the evidence and draw such inferences and con- 
clusions as your good judgment dictates to be drawn from the facts 
and circumstances. 

The first question involved in this indictment is. Did the defendant 
cut, or cause or procure to be cut, timber upon the mineral lands of 
the United States, in the county of Pennington, this State, with intent 
to export it from and out of the State of South Dakota? There are 
really, you might say, two offenses charged. The question has been 
raised on that subject, and there is a bill to be submitted to you. 
That is first for you to determine, Did he cut, or cause or procure to 
be cut, timber, and, if so, did he do so with intent to export it from 
the State of South Dakota? 

There is no law which permits any person to do that. No person 
can go upon the public lands, mineral or otherwise, under conditions 
certainly that apply to this case, so far as we are concerned in the 
investigation of this matter, and cut and remove timber for the pur- 
pose of exporting from the State; certainly not on the mineral lands 
under the statute which I have read. If you find that he did so cut, 
cause or procure to be cut, timber with that intent, then you are at 



Act of June 3, 1S78 {^0 Stat., 88}. 75 

liberty to find the defendant guilty. If you come to the conclusion 
or fail to find that the Government has established that proposition 
beyond reasonable doubt, then you should pass that question, because 
unless you so tind you can not convict him of the alleged offense. 

Then you turn your attention to the other question which is involved 
in that indictment. Did he cut an}^ timber, cause or procure it to be 
cut, on the lands, as therein described, with the intent to dispose of 
it contrary to the statute and rules as laid down and which I have 
given 30U? 

I am of the opinion in this case, and so charge you, that it is incum- 
bent upon the prosecution to satisfy you by evidence beyond a reason- 
able doubt that the defendant did cut, cause or procure to be cut, 
timber from the mineral lands, as charged in the indictment, with 
intent to dispose of the same contrary to the statute and the rules 
prescribed by the Secretary of the Interior; that the burden in this 
case rests upon the prosecution. 

Now, has the Government satisfied j^ou, because it is incumbent 
upon it to do so, that the defendant cut, or caused or procured to be 
cut, timber from the lands described in the indictment for purposes 
other than for building, mining, agricultural, or other domestic pur- 
poses? As I understand, the Government has assumed that responsi- 
bility and maintains it in this case — claims that the responsibility 
rests upon it, as I understand from the officers. 

You will look this evidence all over and examine it with care. 
Something has been said about a Black Hills jury. From what I have 
seen of the men who come to the Black Hills-^I have had some expe- 
rience with them for many long years — I believe, and have so stated 
many a time, that a case will receive the same careful, honest, and 
intelligent consideration from them that it would receive from any 
other part of the State. I dismiss that question. I assume that 3'ou feel 
the same responsibility to do your dut}^ as the court must feel to do his. 

Now, you will look this case over, consider it from all the different 
standpoints, view this evidence, consider and weigh and scrutinize it 
with care, and reach just such a conclusion as your good judgment 
dictates. It is for you, under the rules given by the court, to ascer- 
tain what the truth is, and when you have ascertained it it is your 
duty to bring it to light by your verdict. 

The Government of the United States comes in here like auA^body 
else. It has no right that the humblest citizen has not, but it, as well 
as the defendant, is entitled to your good, honest, intelligent judgment. 

It is claimed by the prosecution from the evidence that this defend- 
ant was manufacturing, and for the purpose of selling lumber to a rail- 
road company; that the defendant was engaged in that business. You 
take all the subsequent facts as 3^ou find them from the evidence; con- 
sider them all. For the purpose of getting at the intent 3^ou may con- 



76 Acf of June 3, 1878 {20 Stat, 88). 

sider what a man did before and after, to enable you to get at the 
intent with which he did the act, if at all. The law provides that a 
railroad company has a right "to take from the public lands adjacent 
to the line of said road, material, earth, stone, and timber necessary for 
the construction of said railroad." 

"Also ground adjacent to such right of way for station buildings, 
depots, machine shops, side tracks, turn-outs, and water stations, not 
to exceed in amount twenty acres for each station, to the extent of one 
station for each ten miles of its road," upon the public lands of the 
United States. 

It would not be a violation of the law of the statute for a party to 
dispose of the timber cut upon the public domain to a railroad company 
for the purpose named. Now, in order to get at the intent you may 
consider this matter, whether or not he was selling, or had sold or dis- 
posed of in any manner, or was about to sell any lumber to a railroad 
company for purposes of construction as a road. He would have no 
right to sell, and the railroad company would have no right to buy, 
for the purpose of repairs, but for the purpose of construction they 
have the right. And if a party cut timber from the public lands with 
the intent to dispose of it to the railroad company for purposes of con- 
struction only, that would not be a violation of the law; but with the 
intent to dispose of it for other purposes than that to be used ))y the 
railroad company for other purposes except for construction, it would 
be a violation. 

You take these acts of the defendant after and before for the purpose 
of coming at the intent with which he cut, or caused or procured to be 
cut, the timber, if you find he did so, and to that extent you have a 
right to consider the evidence. 

This defendant, in standing on trial in this case, as ever}^ defendant 
in this court, is presumed to be innocent until his guilt is established 
by the prosecution beyond reasonable doubt. He is permitted to take 
the stand in his behalf if he chooses to, but is not obliged to, and the 
fact that he does not take the stand does not militate against him. 

The Government is to establish its case by competent proof, and it 
must be done before any jury can convict him. 

Now a reasonable doubt. What is a reasonable doubt? We judges 
and juries have sometimes had a wrong conception of a reasonable 
doubt. Judges have many times attempted to define a "reasonable 
doubt," but it always seems to me that the construction, definition of 
reasonable doubt was more blind than the terms themselves. I can 
see nothing obscure in the term. It simpl}" means a reasonable doubt 
and not an unreasonable doubt. It is a doubt based on evidence or 
want of evidence in the case. It is not some imaginary' doubt, and we 
can not in the nature of things by human testimony reduce matters to 
mathematical certainty. We have to deal with reasonable doubt; not 
imaginary doubt. If after a careful, intelligent comparison and con- 



Act of Jane 3, 1878 {20 Stat, 88). 77 

sideration of the entire evidence 3^011 would say and feel right in say- 
ing that 3'ou would not hesitate to act upon it in the most serious 
affairs of life, then j^ou have no reasonable doubt. If 3^ on would so 
hesitate you have a reasonable doubt, 

The questions of fact are for 3'our consideration. You are the 
exclusive judges of the credibility of the witnesses and of the weight 
to be given their testimon3", and 3"ou must consider and determine 
whether the witnesses have told or intended to tell the truth upon the 
stand and what their testimon3^ weighs, how much it weighs in enabling 
3'ou to get at the truth, because that is the purpose of all the evidence, 
all the law that can be given, to get at the truth so far as the issues 
are concerned. 

If 3"oufind the defendant guilt3^ you will sa3^, "We find the defend- 
ant guilt3^ as charged in the indictment." If you find him not guilty 
you will sa3" "Not guilt3^" b3' 3' our verdict. In order to relieve 3'OU 
of the trouble of writing out the whole form, both forms will be handed 
to you b3^ the deput3^ and 3'ou are to use the form in accordance with 
your verdict. 

In regard to selling to the railroad company for purposes of con- 
struction, I charge 3"ou to mind the statute. The railroad compan3" 
have a right to take, and I charge you that this defendant would have 
a right to cut and sell to the railroad compan3', from the lands adjacent 
to the line of the railroad, material, earth, stone, and timber necessary 
for the construction of said railroad; not to be shipped off somewhere 
else, but adjacent to that line. 

Northern Pacific Railroad Company v. Lewis. 

(162 U. S., 366.) 

In the above case the United States Supreme Court held as follows: 

A person who, without authority, cuts wood from pubHc lands of the United States, 
not mineral, or purchases such wood so cut, and leaves it, when cut or purchased, 
upon such jjublic lands near a railroad, has no right or possession of, or title to, or 
ownership in it, and cannot maintain an action against the corporation owning such 
railroad for its destruction by fire caused l)y sparks from locomotives of the company. 
(See syllabus.) 

It also further held therein as follows: If the right to cut is claimed 
under the act of June 3, 1878 (20 Stat., 88), the burden of proof is on 
the party so claiming to show the mineral character of the land and 
his compliance with the rules and regulations of the Secretaiy of the 
Interior. "The right to cut is exceptional, and quite narrow, and for 
specified purposes onlv. The broad, general rule is against the right. 
If the plaintiffs had acquired the right by reason of a compliance with 
the provisions of the statute the facts should have been shown 1)3" them. 
The presumption, in the absence of evidence, is that the cutting is 
illegal." (U. S. v. Cook, 19 Wall., 691.) 



78 Act ofJtme 3, 1878 {20 Stat. , 88). 

United States v. Milo J. Legg et al. 

District court, fourth judicial district, Montana. 
INSTRUCTIONS OF COURT. 

You are instructed that in a civil action, such as the one at bar, the 
plaintiffs are only required to prove the material alleg'ations of the 
complaint, and the issues raised by the pleadings by a preponderance 
of evidence. 

In this territory the public lands of the United States are divided 
into three general classes, namely, agricultural lands, coal lands, and 
mineral lands. 

1. Agricultural lands are those lands that are capable of being 
brought under a state of cultivation for the production of grain, grass, 
or vegetable of any kind that may be grown in this climate, and which 
are not known to contain any valuable deposits of coal or any of the 
precious metals, such as gold, silver, lead, cinnabar, or other valuable 
minerals. 

2. Coal lands are those lands which are chiefly valuable for the coal 
known to exist therein. 

3. Mineral lands are those lands which are chiefly valuable for the 
minerals (except coal) which the}" contain, and which are more valuable 
for the minerals therein contained than they are as agricultural lands 
or for the timber growing thereon. Mineral lands are not subject to 
entry under the general land laws of the United States, but can only 
be located and entered as mines and mining claims under the act of 
May 12, 1872. Upon such lands persons who are citizens and residents 
of the United States and the Territor}^ may cut and remove therefrom 
the trees and timber growing thereon for domestic, agricultural, or 
mining purposes. But this right to cut timber from mineral lands does 
not give any right to persons to go upon the public coal lands or agri- 
cultural lands of the United States and cut and carry away the timber 
thereon, 

4. The authority granted by the act of June 3, 1878, to cut timber 
applies exclusively to lands which are strictl}^ mineral in character and 
subject to mineral entry only. The defendant must prove b}^ a prepon- 
derance of evidence that such lands are more valuable for the mineral 
than for any other purpose and that they are not suitable for agricul- 
tural purposes or cultivation, or valuable solely for the timber thereon. 

5. In this case the burden of proving the character of the land from 
which this timber was cut or taken b}' the defendants rests upon the 
defendants, and unless the defendants have proven b}" a preponderance 
of the evidence on that point that the land from which this timber was 
cut and taken is mineral land and subject to entry only as mineral 
lands, then they can not justif}^ their entry on said land and the cut- 
ting and carrying away of said timber. 



Act of June 3, 1878 {20 Stat, 88). 79 

6. If you believe from the evidence that the defendants took into 
their possession and sawed up into lumber and sold an}- logs which 
had been previously cut by other persons and had been seized by the 
United States, and which were still held by the United States, and that 
the defendants then took them and converted them to their own use, 
then it is no defense to this action whether said logs were lying- on 
mineral lands or not when they were taken by the defendants and con- 
verted to their own use. 

7. The court instructs you that if the defendants knowingl}- went 
upon the public lands of the United States and cut and carried away 
and converted to their own use any of the trees and timber growing 
thereon and sawed the same into lumber and sold it and kept the 
money therefor, then you should rind for the United States the full 
value of the lumber so cut and sold by the defendants, unless you fur- 
ther find from the evidence that the timber was cut and taken from 
mineral lands. 

8. If you find from the evidence that the defendants were mistaken 
and unintentional trespassers on the public lands of the United States, 
and that l^y mistake they unlawfully cut timber from said lands, not 
knowing said lands were public lands, then you may find for the United 
States the full value of the growing trees and the old logs taken by the 
defendants, unless yoxx also find that the growing trees so found by 3^ou 
to have been cut by the defendants were cut from mineral lands as 
defined in other instructions, then, in that event, you will find for the 
United States the value of the old logs only. 

9. If you find that the defendants knowingly went upon the public 
lands and cut and carried away this timber, and that said lands were 
not b}^ them (defendants) known to be mineral, as defined in these 
instructions, then you will find for the United States the full market 
value of the lumber after it had been sawed up b}^ the defendants and 
the value of the logs in the mill yard that had not been sawed into 
lumber. 

10. The court instructs you that any and all statements made by an}^ 
of the counsel in this case in reference to what the}' expected to prove 
by said record of the United States against Broadwater, Hubbel & Co. 
is not evidence in this cause and should not be considered b}^ 3'ou in 
making up your verdict. 

(Given at defendants' request:) 

If the jury believe, from a preponderance of the evidence in this 
cause, that the paper offered in evidence by the plaintifi^ has been 
altered or changed since it was signed by the defendants, then such 
paper would not be the paper originally signed by the defendants and 
the jury have a right to exclude such paper from their consideration. 

(Given at defendants' request:) 

The burden of showing that the trespass was committed (if any is 



80 Act of June 3, 1878 {W Stat., 88)~Timher on Mining Claims. 

proven) on the lands of the United States, and not otherwise, by the 
preponderance of the eAddence. 

If the jury find from the evidence that the old logs were originally 
cut and severed from the soil by others than themselves, then as to 
such logs or timber cut these defendants are not responsible for the 
original cutting and severing from the soil if the defendants had no 
connection therewith at the time of cutting. (Given, but with the 
modification as follows:) But the defendants are liable if 3"ou find from 
the evidence that they unlawfully took such logs after they (the logs) 
had unlawfully been cut by others. 

United States ?'. Lynde et al. 

Circuit court, district of Montana (47 Fed. Rep., 297). 
****** 

A citizen of the United States and resident of Montana Territory may lawfully cut 
and remove timber from the public mineral lands for building, agricultural, 
mining, or other domestic purposes under the statutes of the United States, 
which provide that all citizens of the United States and other persons, bona fide 
residents of certain States and Territories, including Montana, are authorized to 
fell and remove timber growing on public mineral lands, not subject to entry, 
for building, agricultural, mining, or other domestic purposes, subject to regula- 
tions prescribed by the Secretary of the Interior. 

See also U. S. v. O. A. Dodge, cited on page 180. 

RAILROAD COMPANIES CANNOT TAKE TIMBER FROM PUBLIC LANDS 
UNDER ACT OF JUNE 3, 1878 {'20 STAT, 88). 

United States v. Eureka & P. R. Co. 

Circuit court, district of Nevada (40 Fed. Rep., 419). 
Public Lands— Timber — Cut for Use by Railroad Company. 

The defendant, a railroad corporation, purchased for use upon its locomotives 
and cars, wood severed from the public mineral lands. Held, that such purchase 
and use was unlawful, and that the United States could recover from defendant 
the value of the wood so severed and purchased by it. 

TIMBER ON MINING CLAIMS. 

Locators of mining claims, so long as they comply with the law gov- 
erning their possessions, are invested by Congress with the exclusive 
right of possession and enjoyment of all the surface included within 
the lines of their locations, and it is the duty of the locator to care for 
his claim should trespass be attempted thereon, since he is concerned 
for its protection and may undoubtedly maintain suit to that end. 
(SeelL. D., 615.) 



Thiher on Mill Sites— Acts of June 3, 1878 {W Stat. , 88 and 89). 81 

United States v. Levi W. Nelson. 

District court, district of Oregon (5 Sawyer, 68). 
;\IiNiNG Ground. 

A person occupying a portion of the public land as mining ground under the 
mining law of the United States is not bound to purchase the same, but until he 
does so he has a mere license to work the ground for the precious metals therein 
and has no right to cut or use any timber growing or found thereon, except as 
the same may be necessary to enable him to mine the same conveniently. 

Same. 

The defendant occupied 70 acres of public land as mining ground and cut tim- 
ber from 4 acres thereof in advance of his mining operations and disposed of 
the same for his own benefit, assigning as a reason therefor that ])y cutting the 
timber in advance of the mining operations the stumps would rot and therefore 
be more easily removed. Held, that this cutting was not necessary to the mining 
operation, and therefore unlawful. 

CUTTING TIMBER ON MILL SITES. 

A. B. Paoe. 

If such claim be timbered claimant may cut for construction of mill, l)ut not for sale 
for private gain. 

Commissioner McFarland to A. B. Page., Jasj)e7\ Colo. , March 22, 1883. 

Yours of 5th instant received and contents noted. In reply thereto 
3'ou are advised that any miner holding the possessory right to a vein 
or lode, or any owner of a quartz mill or reduction works, and not 
owning a mine in connection therewith, may make location of a mill 
site, as provided by section 2337, Revised Statutes, and upon comply- 
ing with the conditions specified therein may obtain patent therefor. 
The quantit}' of land embraced in each mill-site claim can not exceed 
5 acres, and mast be nonmineral in character. If the mill-site claim is 
timbered there would seem to be no good reason why the lawful claim- 
ant should not be permitted to cut and remove the timber thereon for 
the purpose of constructing a mill, reduction works, tramwa3^s, or 
other accessory required in the development of his mining interests. 
In permitting the removal of the timber from such mill site or tract 
of nonmineral land prior to the issuance of patent therefor, it is strictly 
forbidden to make such timber an article of sale for private gain or 
speculation, but the same must be used and applied to the actual 
development of the mining interests of the individual claimant. 

TIMBER CUTTING— STATUTORY PROVISIONS. 

Instructions. 

(24 L. D., 167.) 

In construing the provisions contained in the two acts of June 3, 1878, and the act of 
August 4, 1892, with respect to timber cutting, it must l)e held that, the first 
of said acts of 1878 (20 Stat., 88), relates to all mineral lands of the United 

21150—03 6 



82 Acts of June 3, 1878 {20 Stat. , 88 and 89). 

States, but to none of any other character, and permits the cutting of timber on 
such lands for building, agricultural, mining, and other domestic purposes, but 
not for the purpose of sale or commerce, and that the second of said acts (20 Stat. , 
89), as amended by the act of 1892, relates to all nonmineral lands of the United 
States, in all public-land States, and prohibits the cutting of timber on such 
lands, except as therein otherwise provided. 

Secretary Francis to the Commissioner of the General Land Office, 

February 23, 1897. 

I am in receipt of jonv communication of May 25, 1896, asking to 
be advised as to the proper constraction of the acts of Congress of 
June 3, 1878 (20 Stat., 88), June 3, 1878 (20 Stat. 89), and of August 
4, 1892 (27 Stat., 3-18), all of which contain provisions relating to the 
cutting of timber on the public lands. 

The act of June 3, 1878 (20 Stat., 88), which may be designated as 
act No. 1, is entitled: 

An act authorizing the citizens of Colorado, Nevada, and the Territories to fell and 
remove timber on the public domain for mining and domestic purposes — 

and the first section reads as follows: 

That all citizens of the United States, and other persons, bona fide residents of the 
State of Colorado or Nevada, or either of the Territories of New Mexico, Arizonai 
Utah, Wyoming, Dakota, Idaho or Montana, and all other mineral districts of the 
United States, shall be, and are hereby, authorized and permitted to fell and remove, 
for building, agricultural, mining, or other domestic purposes, any timber or other 
trees growing or being on the public lands, said lands being mineral, and not subject 
to entrj' under existing laws of the United States, except for mineral entry, in either 
of said States, Territories, or districts of which such citizens or persons may be at the 
time bona fide residents, subject to such rules and regulations as the Secretary of the 
Interior may prescribe for the protection of the timber and of the undergrowth grow" 
ing upon such lands, and for other purposes; Provided, the provisions of this act shall 
not extend to railroad corporations. 

The second section provides that the register and receiver of local 
land offices in whose district any mineral land may be situated shall 
ascertain from time to time whether any timber is being cut upon any 
such land, except for the purposes authorized b}' said act, and if so, 
to report the fact to the general land office, and section three provides 
penalties for the violation of the provisions of the act. 

The other act of June 3, 1878, which may be designated as act No. 2, 
is entitled: 

An act for the sale of timber lands in the States of California, Oregon, Nevada, and 
in Washington Territory. 

The first section of this act authorizes the sale of public lands in 
"the States of California, Oregon, and Nevada and in Washington 
Territory" which are valuable chiefl}^ for timber and stone thereon, 
but unfit for cultivation; the second and third sections specify the 



Acts of June 3, 1878 {W Stat. , 88 and 89). 83 

mode of procedure in such cases, and section four prohibits the cutting 
of timber on the public lands. It reads as follows: 

That after the passage of this act it shall be unlawful to cut, or cause or procure to 
be cut, or wantonly destroy, any timber growing on any lands of the United States, 
in said States and Territory, or remove, or cause to be removed, any timber from said 
lands with intent to export or dispose of the same; and no owner, master, or con- 
signee of any vessel, or owner, director, or agent of any railroad, shall knowingly 
transport the same, or any lumber manufactured therefrom; and any person vio- 
lating the jsrovisions of this section shall be guilty of a misdemeanor, and, on con- 
viction, shall be fined for every such offense a sum not less than one hundred nor 
more than one thousand dollars: Prorided, That nothing herein contained shall 
prevent any miner or agriculturist from clearing his land jn the ordinary working of 
his mining claim, or preparing his farm for tillage, or from taking the timber neces- 
sary to support his improvements, or the taking of timber for the use of the United 
States; and the penalties herein provided shall not take effect until ninety days after 
the passage of this act. 

The lifth section provides for relief from prosecutions under section 
2461 of the Revised Statutes, and the sixth section repeals all acts or 
parts of acts inconsistent with the provisions of this act. 

The third act spoken of in j^our letter is that of August 4, 1892 
(27 Stat., 348), and is entitled: 

An act to authorize the entry of lands chiefly valuable for l)uilding stone under 
the placer-mining laws. 

The first section of this act provides for the entr}^ of lands chiefl}^ 
valuable for building stone under the provisions of the law in relation 
to placer mineral claims, and the second section, which relates to the 
subject now under consideration, reads as follows: 

That an act entitled "An act for the sale of timber lands in the States of California, 
Oregon, Nevada, and Washington Territory," approved June third, eighteen hun- 
dred and seventy-eight, be, and the same is hereby, amended by striking out the 
words "States of California, Oregon, and Nevada, and Washington Territory" where 
the same occur in the second and third lines of said act, and insert in lieu thereof 
the words "public-land States," the purpose of this act being to make said act of 
June third, eighteen hundred and seventy-eight, applicable to all the public-land 
States. 

The proper construction of the two acts of June 3, 1878, was con- 
sidered by the United States Circuit Court in the case of United States 
t\ Smith (11 Fed. Rep., 487), particularly as to their operation within 
the State of Oregon. It was there held that act No. 2 was operative 
in that State to the exclusion of act No. 1. It was said in the course 
of that decision that the provision in act No. 2, making it unlawful to 
cut any timber on any public land in Oregon, except that cut b}" a 
miner or agriculturist in the ordinary working or clearing of his 
mining claim or farm is inconsistent with and repugnant to the license 
to cut contained in act No. 1, and that both provisions could not be in 
full force in the same place. This decision was cited in the decision in 



84 Acts of June 3, 1878 {W Stat. , 88 and 89). 

United States v. Benjamin (21 Fed. Rep., 285), and it was held that 
the provisions of the act (No. 1) authorizing the cutting- of timber on 
the public lands was not applicable to California. 

These decisions were rendered on April 21, 1882, and August 18, 
1881:, respectively. This Department on May 25, 1882, considered a 
number of cases of trespass in cutting timber on mineral lands in the 
Territor}^ of Dakota, and gave certain instructions in the case of 
Frank P. Hardin et al. (1 L. D., 597). Secretary Teller then said: 

The act of Congress approved June 3, 1878, entitled "An act authorizing the citi- 
zens of Colorado, Nevada, and the Territories to fell and remove timber from the 
public domain for mining and domestic purposes," clearly authorizes the cutting of 
timber on the mineral lands of the United States for domestic use. * * * 

It has been alleged that the act of June 3, 1878, does not apply to persons cutting 
timber on the mineral lands for sale, and that to enal|le any person to have the ben- 
efit of that act he must cut the timber for his personal use, and not for sale. Such 
a construction defeats the very intent of the act, which was to allow the settler on 
the mineral lands to have the benefit of the timber thereon growing for use within 
the Territory or State where it grew. 

The purpose and scope of the act were discussed at some length, 
and the conclusion reached is that expressed in the foregoing quota- 
tion. These views were incorporated in a circular upon said act 
issued b}^ j^our office June 30, 1882, and approved by this Department 
(1 L. D., 697), it being said: 

All citizens and bona fide residents of the States and Territories mentioned therein 
are authorized to fell and remove, or to purchase from others who fell and remove, 
any timber growing or being upon the public mineral lands in said States or Terri- 
tories : Provided — 

1. That the same is not for export from the State or Territory where cut. 

2. That no timber less than eight (8) inches in diameter is cut or removed. 

3. That it is not wantonly wasted or destroyed. 

The attention of this Department was in that same j^ear .specihcally 
directed to the apparent conflict in the provisions of said acts of 
June 3, 1878, by a letter from your office requesting instructions in 
regard to the administration thereof. In departmental letter of 
August 7, 1882 (1 L. D., 600), it was held in substance that "the words 
"all other mineral districts of the United States" appearing in act 
No. 1 brought within the provisions of said act not only^.tho^ -inineral 
lands in the States and Territories named but also those in all mineral 
districts outside such States and Territories, it being specifically said 
that "all privileges granted to inhabitants of mineral districts of the 
States and Territories named in the act were grained to the inhabi- 
tants of such mineral districts of California." l/was held that the 
two acts could apply in the same State upow-^ie theory that act 
No. 1 related to mineral lands and to that class of lands only. That 
this was recognized as the proper construction is further evidenced by 
a circular of October 12, 1882 (1 L. D., 695), wherein it was said that 



Acts of June -5, 1878 (20 Stat., 88 and 89). 85 

the cutting- of mesquite on the public mineral lands of the United 
States was allowable under the provisions of said act No. 1, while the 
cutting of such trees upon nonmineral lands was prohibited. This 
holding seems to have been modified to a certain extent by later cir- 
culars. In the circular of Ma}' 7, 1886 (4 L. D., 521), it iis said in 
regard to act No. 1 — 

The act applies only to the States of Colorado and Nevada and to the Territories of 
New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, and Montana and other 
mineral districts of the United States not specifically provided for, and does not apply 
to the States of California or Oregon nor to the Territory of Washington. 

That is, act No. 1 was held to apply to mineral lands in all States 
and Territories therein mentioned, also to all mineral districts outside 
of the States specifically named in act No. 2, but not to mineral lands 
in the States expressly named in act No. 2, except those in Nevada, 
which is named in both acts. 

Further on in this circular it is said: 

Fourth. Timber felled or removed shall be strictly limited to building, agricul- 
tural, mining, and other domestic purposes. 

All cutting of such timber for sale or commerce is forbidden. But for building, 
agricultural, mining, and other domestic purposes each person authorized by the act 
may cut or remove for his or her own use, by himself or herself, or by his, her, or 
their own personal agent or agents only. 

The two acts of 1878, having- been passed upon the same day, should 
he treated as one act and so construed, if possible, as to give each pro- 
vision of each act efl^ect. 

Act No. 1 permits the cutting of timber for certain purposes upon 
mineral lands of the United States in the "States of Colorado or 
Nevada or either of the Territories of New Mexico, Arizona, Utah, 
Wyoming, Dakota, Idaho, or Montana and all other mineral districts 
of the United States," and act No. 2 prohibits the cutting of timber 
on any lands of the United States in ''the public-land States," with 
the proviso, however, that nothing therein contained shall prevent any 
miner or agriculturist from clearing his land in the ordinary working 
of his mining claim or preparing his farm for tillage, or from taking 
the timber necessary to support his improvements. This statement 
presents the apparentl}" conflicting provisions of the two laws, the 
existence of which necessitates construction. If the conclusion of the 
circuit courts, as announced in the decisions hereinbefore cited, that 
the two acts can not operate in the same place, is to be accepted as 
correct, then it will be necessary to determine which of the two is to 
prevail. 

This Department has held, however, that both acts apply in Nevada, 
and if this holding is to be adhered to it would necessarily follow that 
both acts are to be held operative in the other public-land States 
brought within the provisions of act No. 2 by the amendatory act. 



86 Acts of June 3, 1878 {20 Stat, 88 and 89). 

This rule, so long followed in the administration of these laws, should 
not be changed unless it is clearly erroneous. It has been the policy 
to regard the mineral lands in a different light from other public lands 
of the United States, and the result has been a separate and distinct 
system of laws in relation to them. It was evidently this considera- 
tion that led to the conclusion by the Department that the two acts 
might stand and both have effect in the same State. This theor}^ 
seems to be the only reasonable one to explain the enactment of two 
laws upon the same day which are apparently contradictory. This 
construction gives effect to both laws, allowing to each operation in 
its peculiar sphere, and should be adhered to if there be nothing to 
show a contrary intention upon the part of Congress. 

The statement in instructions of April 7, 1887 (1 L. D., 600), in 
regard to act No. 2 — 

By the express provision of section 2 the mineral lands in the broadest sense of that 
term are excluded from the provisions of said chapter — 

is true because the primary object of that legislation was to provide 
for the sale of lands that were not mineral in character and were at 
the same time unfit for agricultural purposes. It may be said the 
insertion of the provision in said act allowing the cutting of timber 
upon mining claims negatives the proposition that the general prohibi- 
tion against cutting was not intended to apply to mineral lands. There 
is some force in that statement, but the inference has not sufficient 
weight to overcome the other express statements. 

In the instructions issued under act No. 1, June 30, 1882, it was held 
that timber might be cut from mineral lands for sale to citizens and 
honajide residents of the States and Territories named in said act. In 
the instructions of Ma}^ 7, 1886, the cutting of timber for sale or com- 
merce was forbidden, but in those of August 5, 1886, the right to cut 
timber for sale was recognized. I can not agree with this latter posi- 
tion. The express provision is that timber may be cut "for building, 
agricultural, mining, or other domestic purposes." If it had been 
intended to make the timber on the public lands an article of trade and 
commerce there should have been inserted therein such a provision as 
"or for sale to honafide residents for such purposes." 

The license given under this provision is in derogation of the rights 
of the public, and must therefore be strictly construed and limited to 
the oases clearly and unequivocally specified in the act. The words 
used do not include a license to cut timber for the purpose of sale, 
and such a license can not properly be included by implication. 

The proper construction of these laws would seem to be No. 1 
relates to all mineral lands of the United States, but to none of any 
other character, and permits the cutting of timber on such lands for 
building, agricultural, mining, and other domestic purposes, but not 
for the purpose of sale or commerce, while act No. 2, as amended by 



Act of June 3, 1878 {20 Stat., 88)—Mi)ieral DktHcts. 87 

the act of 1892, relates to all nonmineral lands of the United States in 
all public-land States, and prohibits the cutting of timber upon such 
lands, except as therein otherwise provided. 

The effect of this act No. 1 as construed by the Department having, 
as you state, "resulted in wholesale devastation of timber on such 
lands for purposes of speculation and personal gain," affords sufficient 
reason for reconsidering the matter for the purpose of correcting the 
evil if possible. Furthermore, a change of the ruling as to the con- 
struction of said act could not affect any vested rights, as it would 
simply operate as a revocation or limitation of the unrestricted license 
to cut, recognized under the construction heretofore given said act. 
There seems therefore to be good reasons for changing the instructions 
under said act, and no valid reason against such action at this time. 

You will at once prepare instructions in accordance with the views 
herein set forth to take effect upon such future date as may seem 
proper, and submit the same for approval. 

TIMBER CUTTING— .MINERAL LANDS'. 

Instructions. 

(29 L. D., 349.) 

The act of .Tune 3, 1878 (20 Stat., 88), with respect to timber cutting on mineral 
lands, appUes to the States of Colorado, Nevada, Montana, Idaho, Wyoming, 
North Dakota, South Dakota, and Utah, the Territories of New Mexico and 
Arizona, and all other mineral districts of the United States. 

Secretary Hitchcock to the Commissioner of the General Land Office, 

December U, 1899. 

The Department has again considered the circular of instructions of 
March 18, 1897, in relation to the cutting of timber on mineral lands, 
and also your recommendation as to changes to be made therein. 

The change suggested relates alone to the territory to be affected by 
the act of June 3, 1878 (20 Stat., 88). 

The circular approved March 18, 1897, but never promulgated, pro- 
vides upon this point as follows: 

The act applies to the States of Colorado, Nevada, Montana, Idaho, Wyoming, 
North Dakota, South Dakota, and Utah, and the Territories of New Mexico and 
Arizona, and all other mineral districts of the United States. 

You propose to substitute for this paragraph the following: 

The operation of the act does not extend beyond the States and Teri-itories specifi- 
cally named therein, viz: The States of Colorado, Nevada, Montana, Idaho, Wyo- 
ming, North Dakota, South Dakota, and Utah, and the Territories of New Mexico 
and Arizona, since the phrase " other mineral districts of the United States," used 
in the act, having no definite signification, is incapable of local application, and, 
conaequently, fails to have any effect for want of certainty. 



88 Act of June 3, 1878 {20 Stat., 88)— Mineral Did nets. 

In regard to this change, and referring to the construction given by 
the former circular, you sa}^: 

While the wording of the act is, doubtless, susceptible of this construction, the 
resultof expanding the operation of the act beyond the States and Territories specifi- 
cally named therein on the strength of so vague and altogether undefined phrase as 
" mineral districts," will be to render it jxractically impossible to administer the law in 
those States and Territories in which it becomes operative under this term, since 
it will be impossible to distinguish as to which lands in such States and Territories 
are to be recognized as constituting "mineral districts." In the opinion of this 
office, this phrase is incapable of definite local application. 

To adopt your recommendation would be to say that the words " and 
all other mineral districts of the United States " are surplusage and of 
no eflfect. Such action would be obnoxious to the well-settled rules 
of construction, which require that effect shall be given to every word 
of a statute, if possible. As said by you, the words in question are 
susceptible of the construction given them in the former circular. 

Furthermore, the fact that difficulty may be met with in practically 
administering a law is not usually safe ground for ignoring a provi- 
sion thereof. 

The second section of said act indicates that effect was intended to 
be given said phrase, and at the same time points out with some degree 
of clearness that all mineral lands are to be considered as within the 
purview of said act. Said section contains the following: 

That it shall be the duty of the register and receiver of any local land office in 
whose district any mineral land may be situated to ascertain from time to time 
whether any timber is being cut or used upon any such lands, except for the jjur- 
poses authorized by this act, within their respective districts. 

Accepting this provision as explaining and defining the term "other 
mineral districts," it materially lessens if it does not entirely obviate 
the difliculties referred to in your letter. 

I agree with 3^ou that it is not necessary to include in this circular a 
reference to the act of March 3, 1891 (26 Stat., 1093), providing for 
permits to cut timber on public timber lands in certain States. That 
act has a well-defined purpose and scope of its own, and it was not 
intended by this circular to affect its operation therein. 

It does not seem necessary to go into a fuller discussion of the ques- 
tions involved, as they were all quite fully gone into b}^ nw prede- 
cessor when first submitted. (24 L. D., 167.) 

I concur in the conclusion then reached, and am of opinion that the 
circular approved March 18, 1897, is correct. You will therefore 
make such modifications as to the date when it shall take effect as may 
be necessary to give due notice thereof, and as so modified it will be 
approved preparatory to its promulgation. 



Acts of June -5, 1878 {20 Stat, 88 and 89). 89 

United States v. English et al. 

Circuit court, district of Oregon, April 4, 1901 (107 Fed. Rep., 867). 

1. Public Domain — Cutting and Removal of Timber — Acts Authorizing — Con- 

struction. 

The act of June 3, 1878, authorizing citizens and residents of the States of Col- 
orado, Nevada, and the Territories, and "all other mineral districts of the United 
States," to fell and remove timber on the public domain does not apply to the 
State of Oregon, there being no such mineral district. 

2. Same — Act Prohibiting — Construction — Cutting for Use in Quartz Mill. 

The proviso to the act of June 3, 1878, §4, prohibiting the cutting and removal 
of timber on the jaublic domain, provides that it shall not prevent any miner 
from clearing land in working his claim, or from taking timber to support his 
improvements. Held, that the taking of the timber for use in a quartz mill adja- 
cent to the land from which it was cut was not within the proviso, and hence 
was prohibited by the act. 

3. Same — Question of Willful Trespass — Imposition of Penalty. 

As the unlawfulness of cutting for use in a quartz mill adjacent to the lands 
from which it is taken is fairly open to question, under the act (the precise 
question never before having been decided), a cutting for such a purpose will 
not be held to be willful, and hence the penalty prescribed therefor will not be 
imposed, but the trespassers will be held liable only for the actual value of the 
wood in the trees. 

Bellinger, District Judge: 

This is an action by the United States to recover the value of 1,684 
cords of wood alleged to have been unlawfully cut upon the public 
domain. The wood was used by the defendants in their quartz mill, 
at what is known as the "Golconda mill" in eastern Oregon, Two 
defenses are made: First, that the wood was cut from some placer 
mining claims owned by the defendants in the vicinity of their mill, 
preparatory to the working of such claims; and second, that the 
defendants have a right to take from the public domain wood neces- 
sary in the conduct of their milling business. 

As to the first of these defenses, I am satisfied that defendants are 
not the owners, in good faith, of the alleged placer claims, and that 
the title so asserted is a mere pretense to justify taking the timber 
from the land claimed as placer-mining ground. 

By the act of June 3, 1878, which is entitled "An act authorizing 
the citizens of Colorado, Nevada, and the Territories to fell and remove 
timber on the public domain for mining- and domestic purposes," it is 
provided: 

That all citizens of the United States and other persons, bona fide residents of the 
State of Colorado, or Nevada, or either of the Territories of New Mexico, Arizona, 
Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the 
United States, shall be, and are hereby, authorized and permitted to fell and remove, 
for building, agricultural, mining, or other domestic purposes, any timber or other 
trees growing or being on the public lands, said lands being mineral, and not subject 
to entry under existing laws of the United States, except for mineral entry, in either 



90 Acts of June 3, 1878 {W Stat., 88 and 89). 

of said States, Territories, or districts of which such citizens or persons maj' be at 
the time bona fide residents, subject to such rules and regulations as the Secretary of 
the Interior may prescribe for the protection of the timber and of the undergrowth 
growing upon such lands, and for other purposes: Provided, The provisions of this 
act shall not extend to railroad corporations. 

Upon the argument it was claimed tliat the defendants were entitled 
under this act to cut the timber in question. But this act does not in 
terms apply to the State of Oregon ; and it has been held that the 
phrase "other mineral districts of the United States'' is not intended 
to include the State of Oregon, there being no such mineral district. 
(U. S. V. Smith (C. C), H Fed. Rep., 487; U. S. v. Benjamin (C. C), 
21 Fed. Rep., 285.) 

The question of defendants' liabilit}" depends upon the construction 
to be given to another act of Congress, approved June 3, 1878, enti- 
tled "An act for the sale of timber lands in the States of California, 
Oregon, Nevada, and in Washington Territory." Section 4 of this 
act is as follows: 

That after the passage of this act it shall be unlawful to cut, or cause or procure to 
be cut, or wantonly destroy, any timber growing on any lands of the United States, 
in said States and Territory, or remove, or cause to be removed, any timber from 
said public lands, with intent to export or dispose of the same; and no owner, 
master, or consignee of any vessel, or owner, director or agent of any railroad, shall 
knowingly transport the same, or any lumber manufactured therefrom; and any 
person violating the provisions of this section shall be guilty of a misdemeanor, and, 
on conviction, shall be fined for every such offense a sum not less than one hundred 
nor more than one thousand dollars: Provided, That nothing herein contained shall 
prevent any miner or agriculturist from clearing his land in the ordinary working of 
his mining claim, or preparing his farm for tillage, or from taking the timber neces- 
sary to support his improvements, or the taking of timber for the use of the United 
States; and the penalties herein provided shall not take effect until ninety days after 
the passage of this act. 

It is contended for the defendants that this is a case of the taking 
of timber from the public domain necessary to support their improve- 
ments, and that it is within the proviso of this section just quoted. 
The Land Department by its instructions interprets the proviso in 
this act to authorize the taking of timber not only from the mines and 
farms of the agriculturist and miner, but when the required quantity 
is not obtainable therefrom, from other public lands near by. It is 
clear, I think, that taking timber from public lands for the use the 
defendants made of this wood is not to support improvements, within 
the meaning of the proviso of section 4 of the act of 1878. The use 
that is here made of this timber is for the conduct of a permanent 
business. The use is not an improvement. It is not in support of, 
and has nothing to do with, an improvement. In the case of U. S. v. 
Hacker (C. C), 73 Fed. Rep., 292, it is held that an indictment under 
this section which does not allege that the defendant intended to export 
or dispose of the timber cut upon public land is fatally defective. The 



Acts of June 3, 1878 {W Stat, 88 and 89). 91 

court was of the opinion in that case that the phrase "■ with intent to 
export or dispose of the same " has reference not only to the removal 
of the timber, but to the cutting of it; and it seems to follow from 
this ruling that the cutting, or procuring to be cut, of timber, or its 
removal, is not a crime, unless what is done is with the intent to export 
or dispose of the same. And it is argued in defendants' behalf from 
this that these defendants are authorized to cut timber, or procure it 
to be cut, from the adjacent public lands, for use in their quartz mill. 
It would seem from the construction that has been given to this stat- 
ute that the act of the defendants is within neither the proviso which 
authorizes the taking of timber, nor the prohibition of the section 
which makes the taking a crime. In other words, the timber in this 
case was not cut for export or sale, nor was it taken by the miner for 
the necessary suppoi-t of his improvements. Nevertheless, I am of the 
opinion that this section must be given such a construction as will pro- 
hibit the taking of timber from the adjacent public lands by a miner 
or agriculturist in any case not within the proviso in this section. 
The statute is intended to preserve the timber upon the public domain 
against the cutting or taking for any purpose other than that of clear- 
ing the land of the agriculturist, or in the ordinary working of the 
mining claim of the miner, or for the purpose of supporting the neces- 
sary improvements of each, and this is not such a case. 

The testimony in the case shows that the value of the wood in the 
tree was 50 cents per cord. When cut it was worth on the ground 
$1.60 per cord, and at the mill $3. I am of the opinion that the acts of 
the defendants were not willful. The}' cut and hauled this wood away 
in the belief that under the law they had a right so to do. The pro- 
vision in section 4 of the act of 1878, by which the unlawfulness of 
timber cutting is made to depend upon an intention to export and 
dispose of the same, leaves it fairly open to question, notwithstanding 
the provisos which follow, whether timber ma}" not be cut for use at 
a quartz mill located on lands adjacent to those from which the timber 
is cut. The precise question has never before been decided, so far as 
I am advised; and, in the absence of a decision adverse to such a claim, 
1 am not disposed to hold the conduct of the defendants willful in 
cutting the timber in question. The total amount cut is 1,684 cords, 
for which the defendants should be charged at the rate of 50 cents 
per cord. 



Department of the Interior, 

General Land Office, 
Washington, D. C. , September 15, 1900. 
Sir: I have received your letter of the 13th instant in reply to 
office letter of the 1st ultimo, relative to the right of persons oper- 
ating smelters in Coconino County, Ariz., to take timber from the 



92 Act of Jane 3, 1878 {iiO StaL, 88)— Smelting. 

public lands for the purpose of manufacturing charcoal to be used in 
smelting. 

It was held in said letter that smelting is not mining, and that tim- 
ber can not be taken from public mineral lands under the act of June 
3, 1878, for smelting purposes. In support of the ruling you were 
referred to the circular of January 18, 1900, containing rules and 
regulations governing the use of timber on public mineral lands, and 
to a decision rendered October 11, 1887, by then Secretary Lamar. 

In your said letter you contend that the decision of 1887 should 
not be held to apply to the smelter for which you desire to secure 
timber, as the facts diiier very materially from the facts in the case 
under consideration by Secretary Lamar when said decision was ren- 
dered. You further contend, if it be held that smelting is not mining, 
and that you have no right to take timber from mineral lands for 
smelting, that you should be allowed, under the act of March 3, 1891, 
and the rules and regulations thereunder, contained in the circular of 
February 10, 1900, to take timber from nonmineral public lands for 
smelting under the clause which allows the free use of timber for 
manufacturing. 

In reply to your said letter, with reference to the first contention 
it is only necessary to state that the rules and regulations governing 
the use of timber on mineral lands, approved by the honorable Secre- 
tary on January 18, 1900, provide in specific terms that — 

No timber is permitted to be used for smelting purposes, smelting being a separate 
and distinct industry from that of mining. 

These regulations are binding on this office, and I must therefore 
adhere to the position taken in said letter of August 1, 1900. 

Section 3 of the circular of February 10, 1900, containing rules 
and regulations governing the use of timber on nonmineral public 
lands in certain States and Territories, under the act of March 3, 
1891 (26 Stat., 1093), as extended by the act of February 13, 1893 
(27 Stat., 444), provides that — 

Settlers upon public lands and other residents of the States and Territories above 
named may procure timber free of charge from unoccupied, unreserved, nonmineral 
public lands within said States and Territories, strictly for their own use for fire- 
wood, fencing, building, or other agricultural, mining, manufacturing, or domestic 
purposes, but not for sale or disposal, nor for use by other persons, nor for export 
from the State or Territory where procured. The cutting or removal of timber or 
lumber to an amount exceeding in stumpage value $50 in any one year will not be 
permitted, except upon application to the Secretary of the Interior and after the 
granting of a special permit. 

The question then arises, is not a resident of the Territory of Ari- 
zona, which is one of the Territories to which said act applies, entitled 
to take timber from nonmineral public lands under the permission to 
take it for ''manufacturing or domestic purposes?" 



Act of June 3, 1878 {20 Stat., 88)— Smelting. 93 

You ask if it is not manufacturing- when crude coppei" ore with 
rock and earth and iron is put into a smelting furnace, the metallic 
copper extracted therefrom, and then and there made into copper 
bars, and I am inclined to the opinion that it is. However, if it 
should be held that smelting is not manufacturing, I am still of the 
opinion that timber used for smelting should be held to have been 
taken for "domestic purposes," which is allowable. 

It is observed that the act of June 3, 1878, under which it is held 
that timber may not be used for smelting, authorizes its use for 
"building, agricultural, mining, or other domestic purposes," but said 
act appears to have been treated with special reference to its effect on 
mining, and in the decision of 1887, above, which has been since fol- 
lowed, the only question considered appears ib have been whether 
smelters are entitled to timber because smelting is mining. 

The act of March 3, 1891, appears to have been passed with a view 
to promoting domestic industries of all kinds in the States and Terri- 
tories to which it applies, and it should be given a broader interpre- 
tation than was given the act of June 3, 1878. 

I am of the opinion, therefore, that timber may be taken for smelt- 
ing from nonmineral public lands in the States and Territories to 
which said act applies, under the rules prescribed in said circular of 
February 10, 1900. 

Attention is called to the fact that it is not allowable to take timber 
in any one year of the stumpage value of more than $50, except upon 
application to the Secretary of the Interior and the granting of a 
special permit. 

Very respectfully, W. A. Richards, 



Mr. Thos. F. Nooxan, Jr. 

Jersey City., iV\ J. 



Actin g Commission er. 



United States v. Isaac Van Winkle. 

United States district court, District of Idaho. 

INSTRUCTIONS OF COURT. 

If I am not mistaken, there is more or less sentiment among the 
people in this country that the Government is somewhat oppressive in 
its timber laws and regulations. 

That is a mistaken view wherever it may be entertained. A mo- 
ment's reflection will convince us that if no restraint were made the 
timber of the country would quickly disappear, and, in many cases, 
would be wantonly destroyed. 

The law is intended to permit its present necessary use to the peo- 



94 Act of June 3, 1878 {20 Stat., 88)— Mineral Lands. 

pie and at the same time prevent its wanton destruction, and, as far as 
possible, preserve it for future use. 

Congress has from time to time enacted such laws as it deems best 
to meet the needs of all the people, and without a desire to oppress 
an3^ As you have learned during the trial, Congress on June 3, 1878, 
enacted a law concerning timber especially applicable to the mining 
sections. Considering the entire act it would seem to have been 
intended for the development of the mining industrv- While provid- 
ing for the use of timber in the mining districts for mining purposes, 
it also provides for its use for other industries, but it was contem- 
plated that wherever the mining industry prospered all the other 
industries referred to in the law would spring up, and that timber for 
other use would be as necessary as for mining purposes; hence the same 
law provided for all, but only in mining districts. 

The statute referred to provides that all citizens and 'bonafide resi- 
dents of certain States and Territories, including Idaho, and in all 
other mineral districts in the United States, are authorized to cut and 
remove for building, agricultural, mining, and other domestic pur- 
poses any timber or other trees growing or being upon public lands, 
said lands being mineral and not subject to entry under existing laws 
of the United States, except for mineral entr} , subject to such rules 
and regulations as the Secretary of the Interior may prescribe for the 
protection of the timber and of the undergrowth growing upon said 
lands, and for other purposes. 

You will observe that: 

1. Only citizens or residents are allowed this privilege. 

2. That the timber can be cut only for domestic use — that it can not 
be exported from the State. 

3. That it can be cut only upon mineral lands. And 

4. That it must be done according to the rules prescribed by the 
Secretary of the Interior. 

In this case there is no question that the defendant is a citizen and 
resident, and that the timber was cut only for domestic use, leaving 
the two other questions for consideration, the most important of 
which is whether the land from which the timber in question was cut 
was mineral within the meaning of the law. 

It is evident from a glance at the law that it was intended as a means 
of affording the necessary supply of timber for the use of the inhabit- 
ants of the mining countries, and any narrow or limited construction 
which would prevent such result would be contrary to the spirit of 
the law. In this connection it must be borne in mind that mining 
operations require a very large amount of timber. To limit the cut- 
ting to the small area or spots upon which mineral is actually found 
would make it an entirely useless law. Neither will it do to hold that 



Act of June 3, 1878 {20 Stat., 88)— Mineral Lands. 95 

it applies only to those lands which have been actually located as min- 
eral claims, for the timber on those belonging to their owners would 
not be available to other citizens; hence, with either of these construc- 
tions, the law would make available very little timber to the class of 
people referred to. The only reasonable construction that can be 
given is that it meant to make, as a timber supply in a mining country, 
all the timber in a mining camp or district which is within the vicinity 
or within such distance of known or actually discovered ore-bearing 
ground as to make it available for use at such places. This would 
include all timber in the neighborhood of mines, or within such dis- 
tance from them as to make it convenient for their use, whether 
mineral is actually found in the ground or not. I add another rule of 
determination — that is, all ground or country of such character, and 
so situated with reference to other lands known to contain mines, that 
miners would prospect it with the expectation of finding mines. Cer- 
tainly a body of timber land without any surface mineral indications, 
and situated so far from a known mineral section that it could not be 
considered a part of it, could not be held mineral until the actual dis- 
covery of mineral in it. 

You must take these definitions which I have given 3'ou, and in con- 
nection with the testimony', determine whether the land on which the 
defendant cut the timber in question was mineral or not. If you con- 
clude that it is not mineral, the defendant had no right to cut timber 
thereon, and is liable to the Government for its value ; if you con- 
clude it is mineral, he had a right to cut it and is not liable, provided 
he complied with the rules and regulations of the Secretary of the 
Interior above referred to. 

Such rules being authorized b}^ law, they are as valid as the law 
itself, provided they are not contradictory of but are in harmony with 
it. The rules in force when the timber was cut provide, among other 
things, that a mill man must keep books to show to whom he disposed 
of kuiiber, and he must require certain statements from purchasers, 
all of which was intended to prevent the exportation of lumber. While 
the defendant did attempt compliance with some of the rules, there is 
no evidence that he complied with these or attempted to do so. This 
rule, it seems, was abrogated by the present Secretary of the Interior 
soon after the cutting referred to in this case was done, and it has been 
argued that defendant should be adjudged by the new rules instead of 
the old. Of course it is evident that the present Secretar}^ considered 
the old rule wrong or he would not have set it aside. There is, how- 
ever, no intimation that cases which occurred under the old rules might 
be settled according to the milder new I'ules. Certainly in law all 
cases must be determined liy the rules and law in effect when the facts 
making the cases occurred, and the courts must so enforce the rules. 



96 Act of June 3, 1878 {W Stat., 88)—3fmeral Lands. 

You are therefore instructed that as the defendant failed to comply 
with the rules in force at the time of the cutting, he is liable to the 
Government for the timber cut. 

The question remains to determine for what amount or by what 
rule the amount must be fixed. It is the law that when a trespasser 
in cases of this kind commits a trespass willfully — that is, knowing that 
he is in the wrong, he must pay the full value of the timber or lumber 
as it was at the time it is found in his possession and claimed by the 
Government, without allowing him anything he has added to the value 
of the timber by his labor: but when he has acted in good faith and 
under the belief that he had a right to take it, he is to be charged for 
the timber at its value as he found it standing on the land. 

You must judge from the testimony whether the defendant acted in 
such good faith or not, and find your verdict according to your con- 
clusion from his testimonv. 

United States v. Richmond Mining Company. 

Circuit court, district of Nevada, November 23, 1889 (40 Fed. Rep., 415). 

Public Lands — Right to Timber Cut for Mining Purposes. 

The defendant, a corporation engaged in mining, reducing ores, and refining 
bullion, purchased wood and charcoal for use at its reduction works. The cord 
wood, and the wood from which the charcoal was manufactured, were cut upon 
unsurveyed public lands, mineral in character, of little or no value except for the 
mineral therein, and within organized mining districts, or not far remote from 
known mines. Held, that this was mineral land within the meaning of the act of 
Congress of June 3, 1878, permitting timber to be taken therefrom for "building, 
agricultural, mining, or other domestic purposes;" and that defendant could law 
fully purchase such wood and coal for said use under the license given by said 
act. (Syllabus by the court.) 

United States v. Edwards, 

District court, district of Colorado, June 12, 1889 (38 Fed. Rep., 812). 

Public Lands — Mineral Lands. 

Land returned on the Government survey as mineral land, of broken and 
rugged surface, with every indication of mineral gi'ound, but on which no mines 
have been located, though in the vicinity of valuable mines, and which is unfit 
for cultivation and entry as agricultural lands, is within the meaning of act of 
Congress of June 3, 1878, allowing timber to be taken from the mineral lands on 
the public domain for building, agricultural, mining, or other domestic purposes. 

United States v. Price Trading Company et al. 

Circuit court of appeals, eighth circuit (109 Fed. Rep., 239). 

******* 

Cutting; of Timber from Mineral Lands — Regulations Governing. 

The regulations prescribed by the Secretary of the Interior, under and pursu- 
ant to act June 3, 1878 (20 Stat., 88), authorizing the cutting of timber from 
public mineral lands in certain States and Territories for building, agricultural, 



Act of June -5, 1878 {20 \tat. , 88). 97 

mining, or other domestic imrposeF, which regulations lequire "every owner or 
manager of a sawmill, or other person felling or removing timber under the i)ro- 
visions of this act," to keep a record showing by whom such timber was cut, 
from what lands, evidence of mineral character, to whom the timber was sold 
and for what purpose, etc., and to take from each purchaser a written certificate 
under oath, that the purchase is made for his own use, and for an authorized 
purpose, contemplate the keeping of such records only by persons who, like 
the proprietors of sawmills, make a business of cutting timber on mineral 
lands and selling it, or who are engaged to a considerable extent in such busi- 
ness, and they do not apply to settlers engaged chiefly in other pursuits, who cut 
small quantities of timber from mineral lands which they occupy, and who 
barter the same to a trader, with the understanding that it will be resold toother 
farmers or ranchmen in the vicinity for domestic uses, so as to render such cut- 
ting or sale unlawful, although the prescribed conditions are not complied with. 
Sanborn, circuit judge, dissenting. 
Same — Statute Giving Right to Cut Timber from Mineral Lands — Repeai, by 
Implication. 

The right, given by act June 3, 1878 (20 Stat., 88), to citizens of the States of 
Colorado and Nevada, and the Territories, excepting Washington, to cut timber 
from public mineral lands for certain domestic purposes, was not affected by the 
act of the same date (20 Stat., 89) for the sale of timber lands in the States of 
California, Oregon, Nevada, and in Washington Territory, and which prohibited 
the cutting of timber on any public lands in those States and Territory with 
intent "to export or dispose of the same," as amended by act of August 4, 1892 
(27 Stat., 348), by striking out the names of the States and Territory therein 
named and inserting in lieu thereof the words "public-land States." The first 
act was special, and designed for the benefit of the residents of States and Terri- 
tories in many parts of which timber is scarce, and the amendment to the second 
act must be construed as authorizing the sale of timber lands in all other public- 
land States, and not as repealing by implication the privileges conferred by such 
special act. 
****** * 

Public L.\nds — Action for Unlawful Cutting of Timber — Defense. 

To sustain a defense to an action by the United States to recover the value of 
timber conceded to have been cut from public lands, and which was purchased 
by defendant from sundry persons who cut the same, on the ground that the 
cutting was authorized and lawful, under act June 3, 1878 (20 Stat., 88) , and the 
regulations prescribed by the Secretary thereunder, the defendant must prove 
(1) that the choppers who felled and removed the timber were bona fide resi- 
dents of the State; (2) that the land from which it was cut was of strictly 
mineral character; (3) that such land was not subject to entry under existing 
laws of the United States, except for mineral entry; and (4) that the choppers 
sold the timber to citizens and bona fide residents of the State for the legitimate 
use of such purchasers for building, agricultural, mining, or other domestic pur- 
poses. Each of these facts is essential to such defense without regard to whether 
rule 4 of the regulations requiring a record to be kept is applicable to the case, 
and the erroneous direction of a verdict for defendant in such a case can not be 
held without prejudice, where the evidence in the record leaves a question for the 
jury upon either one of such facts. Per Sanborn, circuit judge, dissenting. 

21150—03 7 



98 Acts of June 3, 1878 {20 Stat., 88 and 89). 

OPEIIATIOX OF THE ACT OF JUNE 3, 1878 {20 STAT., 88) DISTINGUISHED 
FROM THAT OF THE ACT OF .TUNE 3, 1878 {20 STAT, 89). 

United States t. Smith. 

Circuit court, district of Oregon (11 Fed. Rep., 487). 

TixMJiEu ON Public Lands in Oregon. 

The act of June 3, 1878 (20 Stat., 88), giving permission to the residents of 
Colorado, Nevada, the Territories, "and other mineral districts of the United 
States," to cut timber for certain purposes upon the mineral lands therein, does 
not apply to Oregon, but the subject of cutting timber on the public lands 
within such State is regulated by the act of the same date (20 Stat., 89), provid- 
ing, among other things, for the sale of timber lands therein. 

Mineral District. 

This term, as used in the first of the said acts of June 3, 1878 (20 Stat., 88), 
has no application to Oregon, there being no such division or district of the State 
established either by law or common reputation. 

See decision in full, cited on page 107. 

United States v. Benjamin. 

Circuit court, district of California (21 Fed. Rep., 285). 

Public Lands — Cutting Timber on ^Mineral Laniw in California — Act of June 3, 
1878, CHS. 150 and 151. 

Timber upon mineral lands in the State of California is protected and gov- 
erned by the provisions of the act of June 3, 1878, chapter 151 (20 Stat., 89), 
made specifically applicable to that State, and not by the general provisions of 
chapter 150 of the act of June 3, 1878 (20 Stat., 88), which can only operate 
upon "mineral districts," if any there be, not specifically provided for by desig- 
nating the particular State or Territory in which it is situated by name. 

See decision in full, cited on page 112. 

TIMBER AND STONE LAND ACT. 

[Act of June 3, 1878, Chap, 151; 20 Stat, 89.] 

AN ACT for the sale of timber lands in the States of California, Oregon, Nevada, and 

in Washington Territory. 

Be it enactedhy the Senate and House of Rejjresentatives (ftJie United 
States of America in Congress assenMed^ That surve^^ed public lands of 
the United States within the States of California, Oregon, and Nevada, 
and in Washington Territory, not included within military, Indian, or 
other reservations of the United States, valuable chiefly for timlier, but 
untit for cultivation, and which have not been offered at public sale, 
according to law, may be sold to citizens of the United States, or persons 
who have declared their intention to become such, in quantities not 
exceeding one hundred and sixt}^ acres to any one person or association 
of persons, at the mininmm price of two dollars and fifty cents per acre; 
and lands valuable chiefiv for stone mav be sold on the same terms as 



Act of June 3, 1878 {20 Stat, 89). 99 

timber lands: Provided, That nothing- herein contained shall defeat or 
impair any bona fide claim under any law of the United States, or 
authorize tiie sale of any mining claim, or the improvements of any bona 
fide settler, or lands containing gold, silver, cinnabar, copper, or coal, 
or lands selected by the said States under an}^ law of the United States 
donating lands for internal improvements, education, or other purposes: 
And provided /■urt her, That none of the rights conferred by the act 
approved July twenty-sixth, eighteen hundred and sixty- six, entitled 
"An act granting the right of way to ditch and canal owners over the 
public lands, and for other purposes," shall be abrogated by this act; 
and all patents granted shall be subject to any vested and accrued 
water rights, or rig-hts to ditches and reservoirs used in comiection with 
such water rights, as may have been acquired under and b}^ the pro- 
visions of said act; and such rights shall be expressly reserved in any 
patent issued under this act. 

Sec. '2. That any person desiring to avail himself of the provisions of 
this act shall tile with the reg-ister of the proper district a written state- 
ment in duplicate, one of which is to be transmitted to the General 
Land Office, designating by legal subdivisions the particular tract of 
land he desires to purchase, setting- forth that the same is unfit for cul- 
tivation, and valuable chiefly for its timber or stone; that it is unin- 
habited; contains no mining or other improvements, except for ditch 
or canal purposes, where any such do exist, save such as were made by 
or belong to the applicant, nor, as deponent verily believes, any valua- 
ble deposit of gold, silver, cinnabar, copper, or coal; that deponent has 
made no other application under this act; that he does not apply to pur- 
chase the same on speculation, but in g*ood faith to appropriate it to his 
own exclusive use and benefit; and that he has not, directly or indirectly, 
made any agreement or contract, in any wa}^ or manner, with any person 
or persons whatsoeA^er, by which the title which he might acquire from 
the Government of the United States should inure, in whole or in part, 
to the benefit of any person except himself; which statement must be 
verified by the oath of the applicant before the register or the receiver 
of the land office within the district where the land is situated; and if 
any person taking- such oath shall swear falseh' in the premises, he shall 
be subject to all the pains and penalties of perjur3\ and shall forfeit the 
money which he may have paid for said lands, and all right and title to 
the same; and any grant or conveyance which he may have made, 
except in the hands of bona fide purchasers, shall Ije null and void. 

Sec. 3. That upon the filing of said statement, as provided in the sec- 
ond section of this act, the register of the land ofiice shall post a notice of 
such application, embracing a description of the land by legal subdivi- 
sions, in his office, for a period of sixty days, and shall furnish the appli- 
cant a copy of the same for publication at the expense of such applicant, 
in a newspaper published nearest the location of the premises, for a 



100 Act of June 3, 1878 [W Stat, 89). 

like period of time; and after the expiration of said sixty daj's, if no 
adverse claim shall have been filed, the person desiring to purchase shall 
furnish to the register of the land office satisfactory evidence, first, that 
said notice of the application prepared l)}^ the register as aforesaid was 
duly published in a newspaper as herein required; secondly, that the 
land is of the character contemplated in this act, unoccupied and with- 
out improvements other than those excepted, either mining or agri- 
cultural, and that it apparent^ contains no valuable deposits of gold, 
silver, cinnabar, copper, or coal; and upon payment to the proper officer 
of the purchase money of said land, together with the fees of the regis- 
ter and the receiver, as provided for in case of mining claims in the 
twelfth section of the act approved May tenth, eighteen hundred and 
seventy-two, the applicant may be permitted to enter said tract, and, 
on the transmission to the General Land Office of the papers and testi- 
mony in the case, a patent shall issue thereon: Provided, That any 
person having a valid claim to any portion of the land may object, in 
writing, to the issuance of a patent to lands so held b}^ him, stating the 
nature of his claim thereto; and evidence shall be taken, and the merits 
of said objection shall be determined by the officers of the land office, 
subject to appeal, as in other land cases. Effect shall )>e given to the 
foregoing provisions of this act by regulations to be prescribed by the 
Commissioner of the General Land Office. 

Sec. 4. That after the passage of this act it shall be unlawful to cut, 
or cause or procure to be cut, or wantonly destroy, any timber growing 
on any lands of the United States, in said States and Territory, or 
remove, or cause to be removed, any timber from said public lands, with 
intent to export or dispose of the same; and no owner, master, or con- 
signee of any vessel, or owner, director, or agent of any railroad, shall 
knowingly transport the same, or any lumber manufactured therefrom; 
and any person violating the provisions of this section shall be guilty 
of a misdemeanor, and, on conviction, shall be fined for every such 
offense a sum not less than one hundred nor more than one thousand 
dollars: Provided, That nothing herein contained shall prevent any 
miner or agriculturist from clearing his land in the ordinary Avorking 
of his mining claim, or preparing his farm for tillage, or from taking the 
timber necessary to support his improvements, or the taking of timber 
for the use of the United States; and the penalties herein provided 
shall not take effect until ninety days after the passage of this act. 

Sec. 5. That any person prosecuted in said States and Territory for 
violating section two thousand four hundred and sixty-one of the 
Revised Statutes of the United States who is not prosecuted for cut- 
ting timber for export from the United States may be relieved from 
further prosecution and liability therefor upon payment, into the court 
wherein said action is pending, of the sum of two dollars and fifty cents 
per acre for all lands on which he shall have cut or caused to be cut 
timber, or removed or caused to be removed the same: Provided, That 



Act of June 3, 1878— Act of August ^, 1892. 101 

nothing contained in this section shall be construed as granting to the 
person hereb}'^ relieved the title to said lands for said payment; but he 
shall have the right to purchase the same upon the same terms and 
conditions as other persons, as provided hereinbefore in this act: And 
fiirtlier jjTovlded^ That all moneys collected under this act shall be 
covered into the Treasur}- of the United States. And section four 
thousand seven hundred and fifty-one of the Revised Statutes is hereby 
repealed, so far as it relates to the States and Territory herein named. 

Sec. 6. That all acts and parts of acts inconsistent with the provi- 
sions of this act are hereby repealed. 

This act was made applicable to all the public land States by the act 
of August 4, 1892 (27 Stat., 318.) 

[Act of August -J, 1M92; T, Stat., 34.S.] 
* * * w -X- * * 

Sec. 2. That an act entitled " An act for the sale of timber lands in 
the States of California, Oregon, Nevada, and Washington Territory," 
approved June third, eighteen hundred and seventy -eight, be, and the 
same is hereb}^, amended b}^ striking out the words "States of Cali- 
fornia, Oregon, Nevada, and Washington Territorj'" where the same 
occur in the second and third lines of said act, and insert in lieu thereof 
the words "public-land States,"" the purpose of this act being to make 
said act of June third, eighteen hundred and seventy-eight, applicable 
to all the public-land States. 

Sec. 3. That nothing in this act shall be construed to repeal section 
twenty-four of the act entitled "An act to repeal timber-culture laws, 
and for other purposes," approved March third, eighteen hundred and 
ninety-one. 

United States v, Williams and others. 
United States r. Williams and another. 

Circuit (.-ourt, district of Oregon (18 Fed. Rep., 475). 

Cutting Timber on the Public Lands. 

Section 4 of tlie act of June 3, 1878 (20 Stat., 89), prohibits the cutting of any 
timber on the public lands with intent to dispose of the same; but the proviso 
thereto permits a settler under the preemption and homestead acts to clear his 
claim as fast as the same is put under cultivation, and the timber cut in the 
course of such clearing may be disposed of by the settler to the best advantage. 

Same. 

But if such settler cuts timber on his claim with the intent to dispose of the 
same, and not merely as a means of preparing the land for tillage, he is a willful 
trespasser, and is liable accordingly. 

Damages for Cutting Timber. 

The measure of damages in an action for cutting timber on the public lands, 
in case the trespass is inadvertent and not willful, is the value of the timber in 
the tree; but where the trespass is willful, the value of the labor put upon it by 
the trespasser must be added to the value in the tree, with interest thereon in 
either case. 



102 Act of June 3, 1878 {20 8taL, 89). 

Trespass by Mistake. 

The defendant claimed to have taken up a homestead on the northwest quar- 
ter of section 22 of township 19, and, while intending to cut saw logs thereon, 
with intent to dispose of the same, did, by mistake, cut said logs on the north- 
east quarter of said section. Held, that if the defendant had cut the logs on the 
northwest quarter, as he intended, it would have been a willful trespass, and 
therefore his mistake was immaterial, and he was liable to the United States for 
the value of said logs as a willful trespasser. 

Department of the Interior, 

General Land Office, 
]]'as/dngt(m, D. C, June 2, 1896. 
Sir: By reference from the Department, 1 am in receipt of your 
letter of May 14, 1896, addressed to the honorable Secretary of the 
Interior, and requesting reply to the following questions: 

1. Have we the right to take timber from Government land to satisfy the require- 
ments of our flumes and mines? 

2. Have we the right to cut logs for miners owning claims in the neighborhood 
and to receive toll therefor? 

You are advised that under the proviso to section 4, act of June 3, 
1878 (20 Stat., 89), the miner is authorized to cut the timber necessary 
to be cut in clearing his land in the ordinarj^ working of his mining 
claim, and to support his improvements. The proviso limits the cut- 
ting on the public lands to that done by a miner or agriculturist on 
his claim and for two purposes, viz, to enable him to work his claim 
for mining or farm purposes and to supply himself with the timber 
needed for his improvements. It does not license any cutting on the 
public lands beyond the limits of a mining or homestead claim, for 
the purposes above mentioned or for an}^ other purpose. 

Therefore it appears that you have no right to take timber from 
vacant Government land to supply your flumes and mines. 

In repl}' to your second inquiry, you are advised that miners have 
the I'ight to employ others to cut for them such timber as, and above 
stated, they are authorized to cut either for clearing or for improve- 
ments, and they may receive in exchange for timber so cut lumber to 
be used for the improvements for which the said timber was cut. 

It therefore appears that you may negotiate with a miner or agri- 
culturist to cut for him the timber necessary to be removed from his 
claim in the ordinary adaptation of it to mining or for farm purposes, 
or the timber needed for improvements. 

The timber cut for clearing in the ordinarj^ working of a mining- 
claim or preparing a homestead claim for tillage may be sold for 
money. The timber cut for improvements ma}' be exchanged for the 
lumber needed and to be applied to such improvements. 
Very respectfull}^, 

E. F. Best, 
Acting Cammissionet'. 

Mr. W. E. CouL, 

Ajpjplegate Water Company., Jacksonmlle, Oregon. 



Sec. 5 of Act of June 3, 1878 {W Stat. , 89). 103 

PA YMENT OF p. 50 PER ACRE, UNDER SECTIONS OF THE ACT OF JUNE 
3, 1878 {W STAT., 89), ONLY RELIEVES FROM CRIMINAL LIABILITY. 

United States v. Scott et al. 

Circuit court, northern district of California (39 Fed. Rep., 900). 

Public Lands — Cutting Timber — Payment for Land. 

A party prosecuted for cutting timber on the pubhc lands under section 2461, 
Revised Statutes, is only relieved from the criminal prosecution and liabilities 
provided for in said section 2461 by payment of $2.50 per acre for the land on 
which it is cut, in pursuance of the provisions of the act of 1878 ( 1 Supp. Rev. 
Stat., p. 329, sec. 5); he is not relieved from his civil common-law liability to the 
United States as owner of the land for the value of the timber cut. 

SECTION 2461, U. S. R. S., NOT REPEALED BY THE ACT OF JUNE 3, 1878 

{30 STAT, 89). 

Department of the Interior, 

WasJiington^ D. C, S€j)te)iihei' '24., 1878. 

Sir: 1 have the honor to transmit herewith a copy of a telegram 
received from Special Agent Hobbs, dated San Francisco, Cal., June 
21, 1878, in which he states that the United States attorney says: "The 
repeal of the old timber law leaves no criminal statute in force under 
which a part}^ may be prosecuted for past offenses, unless suits are 
already commenced." I also transmit copy of the rules and regulations 
adopted by this Department in accordance with the provisions of two 
certain acts of Congress approved June 3, 1878, in relation to the sale 
and disposal of timber lands, and the punishment for depredations 
thereon. (Pamphlet Laws for 1877-78, pp. 88, 89, 90, 91.) 

These acts provide for the sale and disposal of timber lands, and also 
specify in what cases prosecutions shall be brought for depredations 
thereon in the future. The fifth section of the act entitled "An act for 
the sale of timber lands in the States of California, Oregon, Nevada, and 
Washington Territory," provides for the settlement of cases prosecuted 
under section 2161 of the Revised Statutes. I do not understand, how- 
ever, that either of said acts was intended to repeal section 2461, nor in 
any mannei to affect the prosecution of persons for depredations already 
committed, except as therein specified. While it is true section 5 of 
the act prescribes a rule for settlement, this does not necessarih", nor 
in fact, take away the right of the Government to prosecute persons 
who have trespassed upon the public lands. Should you agree with me 
in these conclusions, I have the honor to recommend that you will 
instruct the United States attorney for the State of California to prose- 
cute all cases of trespass, wherever committed, if he shall deem the evi- 
dence in his possession sufficient to Warrant the prosecution, which may 
be, or may have been reported to him, in the same manner that they 
were heretofore prosecuted ; and if the persons thus prosecuted are con- 
victed, and desire to make settlement in accordance with the terms of 



104 Sees. 4 and 5 of Act of June 3, 1878 {W Stat, 89). 

the fifth section of said act, that settlement should be made accord- 
ingh', and the further proceedings in the case dismissed. 
Very respectfully, 

C. ScHURz, Secretary.. 
Hon. Charles Devens, 

Attorney- General. 



[16 Op., 189.] 



Sections 4 and 5 of the act of June 3, 1878, chapter 151, entitled "An act for the sale 
of timber lands in the States of California, Oregon, Nevada, and in Washington 
Territory," construed in connection with section 2461, Revised Statutes, punish- 
ing the cutting or removal of timber growing on the public lands. 

Department of Justice, Octoher 29^, 1878. 

Sir: I have carefully considered paragraph 1 of the ''Rules and 
Regulations for the Protection of Timber,"" etc., transmitted with 
your letter of September 24, in connection with Revised Statutes, sec- 
tion 2461, and the two acts of June 3, 1878. 

Section 4 of the longer of these two acts merely singles out from 
the ojffenses described in section 24(U that of cutting or removing 
timber "with intent to export or dispose of it," and affixes to it a new 
and different penalty. 

Section 5 simply allows all persons prosecuted for the cutting or 
removal of timber, "except those who cut or removed with intent to 
export," to relieve themselves from the penalties prescribed in section 
2461 by the paj^ment at the rate of $2.50 an acre of the land on which 
the trespasses were committed. The effect of this provision is to re- 
lease offenders from the penalties incurred for offenses committed 
under the former law prior to the passage of the new act, on their 
compliance with the specified conditions; those who cut or removed 
"with intent to export" being expressly excluded from the benefit of 
the provision. 

I see nothing in the language of the provision that limits its opera- 
tion to prosecutions actually pending when the act was passed. 

The effect of the proviso in section 4, as also of the other act of the 
same date, is simply to exempt certain specified cases from the opera- 
tion of the provisions of section 2461. It is a necessary implication 
from these special provisions that the former law continues in force 
in respect to all cases to which they do not applj'. 

I am therefore of opinion that paragraph 1 of the rules and regula- 
tions transmitted is in accordance with law. 

The United States attorney for the district of California has been 
instructed to be governed in his official action in regard to timber 



Acts of June 3, 1878 {W Stat. , 88 and 89). 105 

cases by the views expressed in this letter, a copy of which has been 
forwarded to him. 

Very respectfully, 

Chas. Devens. 
Hon. Carl Schurz, 

/Secretary of the Interior. 

Department of the Interior, 

General Land Office, 

^Vash'mgton, D. C, May 16, 1896. 
Sir: I have the honor to acknowledge the receipt, by reference from 
the Department, "for consideration, report in duplicate, and return of 
papers," of a letter from the Attorney-General dated May 7, 1896, 
transmitting copy of a letter from the United States attorney for the 
western district of Wisconsin, urging the importance of early action on 
reports submitted to this office presenting evidence in cases of alleged 
trespasses upon public timber, and adding as follows: 

Again, in all of these cases the General Land Office almost uniformly recommends 
criminal prosecution. Congress has so legislated that the remedy by criminal pros- 
ecution is almost worthless to the Government. The statute supposed to apply is 
section 2461, under which the penalties are appropriated. Congress, however, in 
1878 (1 Supp., 1891, p. 167), passed an act relating to California, Oregon, and other 
States, by section 4 of which act the catting of timber in said States is made merely 
a misdemeanor and the penalty limited to a fine of not less than $100 nor more than 
11,000. This act, in 1892, was made general as to all pul^lic-land States (27 Stat., 
348). The only punishment, therefore, now existing is a fine of not less than $100 
nor more than $1,000. A person in prison for nonpayment of this fine could swear 
out as a poor convict at the end of thirty days. Whether a criminal prosecution is 
desirable, therefore, is a question to be carefully considered in each particular case. 

In regard to the question thus raised as to whether section 2461 
U. S. R. S. was repealed by the subsequent act of June 3, 1878 (20 Stat., 
89), the operation of which was extended to all the public-land States 
by the act of August tt, 1892 (27 Stat., 348), I have the honor to report 
that this question was raised in letter from the Department to the 
Attornej^-General, under date of September 24, 1878, transmitting copy 
of certain rules and regulations (presumably of August 15, 1878, copy 
herewith) in connection with section 2461 and the two acts of June 3, 
1878 (20 Stat., 88, and 20 Stat., 89). 

In said letter it was held as follows: 

I do not understand, however, that either of said acts was intended to repeal sec- 
tion 2461, nor in any manner to affect the prosecutions of persons for depredations 
already committed, except as therein specified. While it is true section 5 of the act 
prescribes a rule for settlement, this does not necessarily, nor in fact, take away the 
right of the Government to prosecute persons who have trespassed upon the public 
lands. Should you agree with me in these conclusions I have the honor to recom- 
mend that you will instruct the United States attorney for the State of California to 
prosecute all cases of trespass * * * which may be or may have been reported 



106 Acts ofJmw 3, 1878 {W Stat. , 88 and 89). 

to him in the same manner that they were heretofore prosecuted; and if the persons 
thus prosecuted are convicted and desire to make settlement in accordance with the 
terms of the fifth section of said act that settlement should be made accordingly and 
the further procedings in th6 case dismissed. 

The Attornej'-General, in reply (see 16 Op., 190), states as follows: 

Section 4 of the longer of these two acts merely singles out from the offenses 
described in section 2461 that of cutting or removing timber ' ' with intent to export 
or dispose of it," and affixes to it a new and different penalty. 

Section 5 simply allows all persons prosecuted for the cutting or removal of timber, 
except those who cut or removed " with intent to export," to relieve themselves from 
the penalties prescribed in section 2461 by the payment at the rate of $2.50 an acre 
of the land on which the trespasses were committed. The effect of this proviso is 
to release offenders from the penalties incurred for offenses committed under the 
former law prior to tke passage of the new act on their compliance with the specified 
conditions, those who cut. or removed "with intent to export" being expressly 
excluded froni the benefit of the provision. 

I see nothing in the language of the provision that limits its operation to prosecu- 
tions actually pending when the act was passed. 

The effect of the proviso in section 4, as also of the other act of the same date, is 
simply to exempt certain specified cases from the operation of the provisions of sec- 
tion 2461. It is a necessary implication from these special provisions that the former 
law continues in force in respect to all cases to which they do not apply. 

I am, therefore, of opinion that paragraph 1 of the rules and regulations trans- 
mitted is in accordance with law. 

The United States attorney for the district of California has been instructed to be 
governed, in his official action in regard to timber cases, by the views expressed in 
this letter, * * * 

In addition to the points covered b}" the above correspondence 
between this Department and the Department of Justice, 1 desire to 
invite attention to the following facts : 

Section 2461 U. S. R. S. is derived from section 1 of the act of 
March 2, 1831 (1 Stat., 472), and section 4751 U. S. R. S. is derived 
from section 3 of the same act. 

The act of June 3, 1878 (20 Stat., 89), makes the special provision 
that section 4751 U. S. R. S. is repealed thereby so far as relates to 
the States and Territory therein named, but makes no such provision 
in respect to the remainder of the said act of March 2, 1831, from 
which it appears fair to conclude that only that portion of the act of 
March 2, 1831, comprehended in section 4751 U. S. R. S. was intended 
by Congress to be repealed, and that section 2461 remained untouched. 

1 also respectfully invite attention to the case of Shiver v. United 
States (159 U. S., 491). 

The referred papers are herewith returned. 

Very respectfully, S. W. Lamoreux, 

Oomm issioner. 

The Secretary of the Interior. 

Approved by the Secretary of the Interior in letter of May 23, 1896, 
to the Attornej'^-General. 



Acts of June 3, 1878 {W Stat. , 88 an d 89) —Mineral District. 107 

THE ACTS OF JUNES, 1S78 {20 STAT, S8), AND JUNES, 1676' {20 STAT., S9), 
CAN NOT BOTH BE IN FULL FORCE IN THE SAME PLACE. 

United States v. Smith. 

Circuit court, district of Oregon (11 Fed. Rep., 487). 

Timber on Public Lands in Oregon. 

The act of June 3, 1878 (20 Stat., 88), giving permission to the residents of 
Colorado, Nevada, the Territories, "and other mineral districts of the United 
States," to cut timber for certain purposes upon the mineral lands therein, does 
not apply to Oregon, but the subject of cutting timber on the public lands within 
such State is regulated by the act of the same date (20 Stat., 89), providing 
among other things, for the sale of timber lands therein. 

Mineral District. 

This term, as used in the first of the said acts of June 3, 1878 (20 Stat., 88) , has 
no application to Oregon, there being no such division or district of the State 
established either by law or common reputation. 

Cutting Timber — Who May and What for. 

Under the act of June 3, 1878 (20 Stat., 89), persons occupying the public 
lands in Oregon under the mining, preemption, or homestead laws of the United 
States may cut and use the timber thereon convenient for the purposes of such 
occupancy, and may also take other timber from the public lands, if need be, 
sufficient to maintain the necessary improvements on the lands so occupied; but 
any cutting or removing timber from the public lands otherwise than this, as 
with intent to dispose of or wantonly to destroy the same, is a trespass for which 
the party guilty of the same is liable, civilly and criminally (20 Stat., 90). 

Deady, D. J.: 

This action is brought by the United States to recover from the 
defendant the sum of $10,000 damages for wrongfully cutting and 
carrying awa}^ certain timber between January 1, 1879, and the com- 
mencement of the action, August 17, 1881, then being and growing 
upon that parcel of the unsurveyed public lands of the plaintiff, situ- 
ated in Baker County, Oreg., which, if surveyed, would be township 
11 south, of range -10 east, of the Willamette meridian, with intent to 
dispose of the same, and for that he "did convert and dispose of the 
same." 

The defendant, for answer to the complaint, denies the allegations 
thereof, and for a further answer saj^s that at the time of committing 
the alleged unlawful acts the defendant was a citizen of the United 
States, over 21 years of age, and a bona fide resident of " a mineral 
district of the United States," consisting of Baker, Grant, Union, 
Umatilla, and Wasco counties, the same being "the fourth mineral 
district of the United States in the State of Oregon," and that while 
he was such a resident he did enter upon the unsurveyed tract of pub- 
lic land aforesaid, the same being within said mineral district, and 
"cut and remove therefrom a small number of trees growing thereon;" 
that said tract of land was mineral land, and not subject to entry 
under any law of the United States, "except for mineral entry;" that 



108 Acts of June 3, 1878 {20 Stat. , 88 cmd 89)— Mineral District. 

said trees were "cut and removed and actually used for building, 
agricultural, mining, and domestic purposes by defendant and others 
within said mineral district;" and that the cutting and removing of 
said trees constitute the trespass mentioned in the complaint. The 
plaintiff demurs generally to this defence. 

The lirst act of Congress which in terms authorized or permitted the 
cutting of timber upon the public lands by a private person for any 
purpose was passed June 3, 1878 (20 Stat., 88), and is entitled " An act 
to authorize the citizens of Colorado, Nevada, and the Territories to fell 
and remove timber on the public domain for mining and domestic pur- 
poses." This act contains three sections. The first one authorizes any 
bona tide resident of the States aforesaid or either of the Territories — 
naming them — "and all other mineral districts of the United States," 
to fell and remove, for building, agricultural, mining, or other domestic 
purposes," any trees growing upon the public lands, "said lands being 
mineral," and not then subject to entry, "except for mineral entrj^;" 
subject to such regulations as the Secretar}- of the Interior may pre- 
scribe for the protection of the timber upon said lands, and other pur- 
poses, Avith a proviso that the act should not "extend to railroad 
corporations." The second section makes it the duty of the officers of 
any local land office "in whose district any mineral land may be situ- 
ated" to ascertain whether timber is cut or used upon such mineral 
lands, "except for the purposes authorized by the act," and to give 
notice thereof to the Commissioner of the General Land Office. The 
third section prescri))es the punishment for a violation of the act, or 
the rules made in pursuance thereof. 

The act is very loosely and unskillfully drawn and abounds in 
unnecessar}^ and indefinite phrases and clauses of the "and so forth" 
character. The privilege conceded b}^ it is limited to citizens of the 
United States, "and other persons" resident in certain States and 
Territories— naming them — "and all other mineral districts of the 
United States." It allows timber "or other trees" to be cut for build- 
ing, agricultural, mining, "or other domestic" purposes, subject to such 
regulations as the Secretary" of the Interior may prescribe for the pro- 
tection of the timber and undergrowth, "and for other purposes." 

On the same day another act was passed (20 Stat., 89), entitled "An 
act for the sale of timber lands in the States of California, Oregon, 
Nevada, and Washington Territory." This act contains six sections. 
The first, second, and third ones provide for the sale of the "surveyed 
public lands" within these States and this Territory not included in 
any reservations of the United States, valuable chiefl}^ for timber or 
unfit for cultivation, which have not been offered for sale, in quantities 
not exceeding 160 acres to one person or association, at the minimiun 
price of $2.50 per acre; with a proviso that the act should not, among 
other things, authorize the sale of a "mining claim" or "lands con- 
taining gold, silver, cinnabar, copper, or coal." 



Acts of June 3, 187 S {20 Stat. , 88 and 89)— Mineral District. 109 

Section 4 provides "that after the passage of this act it shall be 
unlawful to cut, or cause or procure to be cut, or wantonly destroy any 
timber grmDviui on any lands of the United States " in the States or Ter- 
ritory^ aforesaid, "or remove or cause to be removed any timber from 
such public lands with intent to export or dispose of the same ; " * ■'' * 
and that any person so offending shall, on conviction, be lined for every 
such offense not less than $100 nor more than $1,000, with a proviso 
that the act shall not "prevent any miner or agriculturist from clearing 
his land in the ordinary working of his mining claim, or preparing his 
farm for tillage, or from taking the timber necessary to support his 
improvements. " Section 5 provides for the relief of persons prosecuted 
in said States and Territor}^ for the violation of the timber act of 
March 2, 1831 (4 Stat., 472; sec. 2461, Rev. Stat.), and repeals section 
4751 of the Revised Statutes, providing for the disposition of penalties 
and forfeitures incurred under said act or section, and directs that all 
moneys collected under that act shall be covered into the Treasurv of 
the United States. Section 6 provides that all acts and parts of acts 
inconsistent with such act are repealed. 

In support of this plea or defense counsel for the defendant contends: 
(1) That the iirst-named act applies to Oregon, as Avell as the States 
and Territories therein expressly named, because it is included in the 
phrase "all other mineral districts of the United States;" and (2) that 
the permission contained in the first section of such act to fell and 
remove timl)er is not limited to the hind occupied by the party cutting 
or removing it, nor to the (juantity needed for his individual use, but 
that it is a license to every resident of a "mineral district," so called, 
in the United States to fell and remove all the timber he ma}^ from any 
portion of the public lands in such district, whether mineral, agricul- 
tural, or timber, to be used by an3"one within the district for building, 
agricultural, mining, or other domestic purposes; and further, that the 
second act, although made applicable to Oregon by name, in no way 
affects or limits the operation of the first one therein. If this is the 
law, then all the timber on the public lands in Oregon may be cut and 
removed therefrom with impunity, provided it is not done for the pur- 
pose of being exported from the State or mineral district where cut. 
No adequate reason is given or suggested wh}^ Congress should thus 
suddenly depart so far from the traditional policy of the Government 
to preserve the timber on the pul)lic lands for the use of those to whom 
it might ultimately dispose of them. 

The argument hinges upon the meaning and application of the phrase 
" mineral district." The use of it in the United States statutes is new, 
and confined to this act. As a mattci- of fact, so far as appears there 
is no section of this State known and defined as the mineral district. 
Being neither known in law or fact as the designation of any well- 
defined or exact locality, it is as void of meaning and incapable of 
application as the phrase "tree district," "stone district," "alkali dis- 



110 Acts of June 3, 1878 {W Stat. , 88 an d 89)— Mineral District. 

trict," or "water district." The title of the act does not contain the 
phrase, but limits its operation to the citizens of Colorado, Nevada, 
and the Territories; and it is not probable that there was an}^ thought 
in the mind of Congress of extending it anj^ further. 

The phrase " mining district'' is well known, and means a section of 
country usually designated by name or understood as being confined 
within certain natural boundaries, in which gold or silver, or both, are 
found in paying quantities, and which is worked therefor, under rules 
and regulations prescribed by the miners therein, as the White Pine, 
the Humboldt, etc. 

This term, and the thing signified by it, are also recognized by the 
United States statutes. (Sees. 2319, 2324:, Rev. Stat.; Copp, U. S. 
Min. Lands, 471). 

There is no method of proceeding known to the law by which a 
district of country can be prospected, surveyed, and established, or 
declared to be a " mineral district." The ordinary surve3^s of the pub- 
lic lands do not include any examination or exploration of them for 
mineral deposits, the surveyor being only required "to note in his field 
book the true status of all mines., salt licks, salt springs, and mill seats 
which come to his knowledge." (Sub. 7, sec. 2395, Rev. Stat.) By 
section 12 of the act of May 10, 1872, entitled "An act to promote the 
development of the mining resources of the United States" (17 Stat., 
95; sec. 2331:, Rev. Stat.), it is provided that the surveyor-general " maj^ 
appoint in each Jand district containing mineral lands as many compe- 
tent surveyors as shall apply for appointment to survey mining claims." 
This "land district" is a division of the State or Territory, as the case 
may be, created by law, in which is located a land office for the dispo- 
sition of the public lands therein. There are four of them in this State. 
It is probable that these "land districtsV in the mining States like 
Colorado and Nevada, were sometimes familiarly spoken of as "the 
mineral districts," from whence the phrase found its way into the act of 
June 3, 1878. But although there are "some mineral lands " and " min- 
ing districts" in Oregon, it is not known that there are any considera- 
ble or contiguous sections of the country to which the term "mineral 
district" could properly be applied, and it is certain that there is none 
to which it is applied b}^ law. It may be admitted that the use of the 
general words "all other mineral districts of the United States," imme- 
diately following the enumeration of the particular States and Terri- 
tories mentioned, is some evidence of an intention by Congress to 
extend the operation of the act beyond the limits of said States and 
Territories. But the difficulty is that the language used has no definite 
signification or local application, and therefore must fail to have any 
effect for want of certainty. Besides, this act is one in favor of indi- 
viduals and in derogation of the rights of the public — the whole people 
of the United States — to whom these lands and timber belong, and 



Acts of June 3, 1878 {W Stat. , 88 an d 89)— Mineral District. 1 1 1 

therefore is not to be enlarged by construction so as to include things 
or persons not expressly enumerated, mentioned, or described therein 
with reasonable certaint3^ (Smith, Com., sec. 738 et seq.) For these 
reasons the act, in my judgment, is not applicable to Oregon, but is 
confined to the States and Territories therein expressl}^ mentioned. 

By act No. 2 of the said acts of date of June 3, 1878, it is declared 
unlawful to cut any timber on any of the public lands in Oregon with 
the exception of that cut bj^ a " miner or agriculturist'' in the ordinary 
working or clearing of his mining claim or farm or that taken there- 
from to support his improvements on such claim or farm. This provi- 
sion is inconsistent with and repugnant to the license to cut timber 
contained in act No. 1. Either the prohibition contained in act No. 2 
must be limited and restrained by construction so as not to apply to 
mineral land — land subjected to ''mineral entry'"' — or act No. 1 must be 
held not applicable to Oregon. Both can not be in full force in the 
same place. It may be said that No. 2, being subsequent in point of 
place in the statute, is presumed to have been passed subsequentl}^ to 
the other, and therefore I'epeals or modifies it so far as the}" are in con- 
flict. But both acts being passed on the same day and measural^ly 
upon the same subject, 1 think they may best be considered as part of 
one act, and each be allowed to stand and have efi^ect as far as it can 
without conflict with the other. It can not be said that in passing act 
No. 1 Congress expressly included Oregon in the license therein given 
to cut timber on the public lands, audit is only claimed that it contains 
some general words which may be interpreted so as to include it, while 
upon the very face of the act it is plain that in the passage of No. 2 it 
was the intention of Congress to regulate the subject of the sale and 
use of the timber upon anj^ of the pulflic lands in Oregon. This being 
so, the only reasonable conclusion is that act No. 2 excludes No. 1, even 
if there was any ground for holding the latter applicable to this State 
under any circumstances. The subject isfully regulated by the former 
act, and there is nothing left for the latter one to operate upon without 
displacing some provision of the other. The provisions for the sale of 
timber lands, for the pi-evention of cutting timber on the public lands, 
and for allowing the miner and farmer to cut and use the timber on 
their claim and to take it from the public lands for the improvement of 
such claims cover the whole ground, and if allowed to bo in full force 
here must exclude the Colorado act from the State. 

The plea is insufiicient. A defense to an action for unlawf ulh' cut- 
ting timber on the public lands in this State must show that it was cut 
upon the mining or farming claim or land of the defendant in the ordi- 
nary course of working the same or preparing it for tillage, as the case 
may be, or was taken from the pul)lic lands for the necessar}- improve- 
ments thereon. It does not appear from the plea herein that the 
defendant cut the timber in question from land then occupied b}" him 



112 Acts o f June 3, 1878 {20 Stat. , 88 and 89)— Mineral District. 

for the purpose of mining or agriculture, or that it was cut from the 
public lands for maintaining the necessary improvements thereon. 

From all that appears the defendant was unlawfully engaged in cut- 
ting timber from the public lands, and is at least liable to the plaintiff 
in damages equal to the value thereof. 

The demurrer is sustained. 

United States v. Benjamin. 

Circuit court, district of California (21 Fed. Rep., 285). 

Public Lands — Cuttincj Timber ox Mineral Lands in California — Act of June 
3, 1878, Chapters 150, 151. 

Timber upon mineral lands in the State of CJalifornia is protected and gov- 
erned by the provisions of the act of June 3, 1878, chapter 151 (20 Stat., 89), 
made specifically applicable to that State, and not by the general provisions of 
chapter 150 of the act of June 3, 1878 (20 Stat., 88), which can only operate 
upon "mineral districts," if any there be, not specifically provided for by 
designating the particular State or Territory in which it is situated by name. 

Sawyer, J. : 

The United States ])ring this action to recover the value of lumber 
alleged to have been manufactured from timber trees unlawfully cut on 
the public lands. The defendant, as a justification, speciall}' answers 
that the trees from whicli the liunber in question was manufactured grew 
and were cut "in a mineral district of the United States," known as 
such throughout the State, and so recognized b}^ the customs of miners 
and the decisions of the courts, and designated "The Georgetown 
mineral and mining district," being "iti the mineral belt of said State 
of California and county of Eldorado;" that defendant was and is a 
citizen of the United States and a bona fide resident of said "George- 
town mineral district;" that the land on which said trees grew was 
public land of the United States, mineral in character, and not subject 
to entry under existing laws of the United States except as mineral 
lands; that the limiber " was used in said mineral district and adjoin- 
ing mineral districts of said county of Eldorado for building, agricul- 
tural, mining, and other domestic purposes, but principally for mining 
purposes; that said timber was felled, removed, and used for the said 
purposes, * "^ * in accordance with the rules and regulations pre- 
scribed by the Secretaiy of the Interior;" and that said timber "was 
felled and removed, and said act committed, under a license from the 
United States, imder and hy virtue of an act approved June 3, 1878, 
entitled ' An act authorizing the citizens of Colorado, Nevada, and 
other Territories to fell and remove timber on the public domain for 
mining and domestic purposes.'" 

The act under which defendant attempts to justify provides — 

That all citizens of the United States, and other persons bona fide residents of the 
State of Colorado or Nevada, or either of the Territories of New Mexico, Arizona, 



Acts of June 3, 1878 {20 Stat. , 88 and 89)—3Imeral District. 113 

Utah, Wyoming, Dakota, or Montana, and all other mineral districts of the United 
States, shall be, and are hereby, authorized and permitted to fell and remove, for 
building, agricultural, mining, or other domestic purposes, any timber or other trees 
growing or being on the public lands, said lands being mineral and not subject to 
entry under existing laws of the United States, except for mineral entry, in either of 
said States, Territories, or districts of which such citizens or persons may be at the 
time bona fide residents, subject to such rules and regulations as the Secretary of 
the Interior may prescribe for the protection of the timber and of the undergrowth 
growing uj^on such lands, and for other purposes. 

The United States attorney insists that this a(;t is not appUcable to 
the State of California, and, consequently, it can afford no justification 
of the acts complained of. The defendant, on the other hand, contends 
that the words ''^ all other mineral districts of the United States" embrace 
every 'S;? /??/?? (/district" recognized as such b}' the customs of miners 
of the locality embracing it, in whatever State or Territory it may be 
situated. A similar question arose in the circuit court for the district 
of Oregon in U. S. v. Smith, in which Dead}^ J., after a full and careful 
consideration of the question, held that the act did not apply to the 
State of Oregon. (U. S. v. Smith, 8Sawy., 101, S. 0. ; 11 Fed. Rep., 487.) 
If it does not apply to Oregon, for similar reasons it is inapplicable 
to California. 

After a careful consideration of the question I am constrained to 
concur in the conclusion reached by the district judge of Oregon, and 
hold the provison to be inapplicable to California. 

If this act stood alone, the position taken by the defendant's counsel 
would not be without plausibility. But, unfortunately for him, it does 
not stand alone. On the same day another act was passed, specificall}^ 
applicable to timber lands in the States of California, Oregon, Nevada, 
and Washington Territory, which contains provisions whollyincon- 
sistent with the provisions relied on in the act relating specifically to 
Colorado and the Territories therein named. It does not appear which 
act was, in fact, first passed, but probabl}^ it was the first-mentioned 
act relating to Colorado, etc., as that is designated in the statutes as 
chapter 150, while the act relating to California, etc., is numbered 
chapter 151 of the statutes. (See 20 Stat. , 88, 89. ) If the latter act is to 
be treated as a subsequent statute, it repeals the inconsistent provisions 
of the prior act, as it expressly provides that "all acts and parts of 
acts inconsistent with the provisions of this act are hereby repealed" 
(sec. 6). But the most favorable view for the defendant is to regard 
the two statutes, as they wei-e both passed on the same day, as consti- 
tuting but one statute, the former part of the act making specific pro- 
visions for Colorado and the other States and Territories named, and 
the subsequent provisions of the act making like provisions for Cali- 
fornia and the other States and Territories therein named. So viewing 
the statute, we must, if possible, construe all the provisions in such 
manner that every part can stand and have effect. 
21150—03 8 



114 Acts of June S, 1878 {20 Stat. , 88 and 89)— Mineral District. 

In such cases, also, loose general provisions of doubtful import in 
the former part of the statute must yield to subsequent clear and spe- 
cific provisions which are so explicit as to admit of but one construc- 
tion. The clause "all other mineral districts of the United States," 
in the first-named act, as shown by Deady, J., in the case already cited, 
is v^er}' general and exceedingly indefinite and uncertain as to its appli- 
cation, while the provisions of the other act are made sjyeci/ically appli- 
cable to the State of California by terms so clear and explicit as not to 
be open to any other construction. The most that can be said of the 
general clause is that it can only i-ef er to ' ' all other mineral districts 
of the United States" not otherwise specifically pointed out by other 
provisions of the act, the two acts being regarded as one. But Cali- 
fornia is otherwise specifically provided for. In my judgment the 
timber upon the public lands in the State of California is protected and 
governed b}' the provisions of the second act, made specifically appli- 
cable to California, and not by the loose general provisions of the first 
act, which can onl}^ operate upon " mineral districts,"" if any there be, 
not specifically provided for, by designating the particular State or 
Territory in which it is situated by name. 

To hold otherwise would be to make the specific and certain yield to 
the general, indefinite, and uncertain, which would be contrary to the 
well-established canons of statutory construction. The second act 
expressly provides " that after the passage of this act it shall be unlaw- 
ful to cut, or cause or procure to be cut, or wantonly destroy, any tirn- 
her growing on any lands of the United States in said States and Ter- 
ritories," of which California is the first specifically named in the act: 
'•'•Provided^ That nothing herein contained shall prevent any 7niner or 
agriculturist from clearing his land in the ordinary loorking of his 
mining claim, or preparing his farm for tillage, or from taking the 
timber necessarj^ to support his improvements." Thus it will be seen 
that the right to cut timber is nuich more restricted as applied to the 
States and Territories named in this act than the right conferred on 
the residents of the States and Territories named in the other act. In 
this act the right is limited strictly to the jniner and agriculturist, and 
is restricted to cutting timber on his own mining claim or farm^ and 
to the purpose of clearing the land in the "ordinary working of his 
mining claim," or "preparing his farm for tillage," and to "taking 
the timber necessary to support his improvements." The part of the 
answer in question does not show defendant to be either a miner or 
farmer, or that he cut the timber on his own mining or farming claim, 
or that he did it for any of the designated purposes. Indeed he does 
not attempt to bring himself within the provisions of this act relating 
specifically to California, but he relies wholly on the other act, which 
specifically relates to Colorado, and the other Territories and districts 
therein named, in general indefinite terms, which latter act is much 
more liberal in its provisions than the other. 



Timber on Homestead Entries. 115 

It follows that the facts alleged are insufficient to constitute a defense, 
and, if true, are wholly immaterial. 

The demurrer must be sustained, and the motion to strike out 
granted; and it is so ordered. 

timber on homestead entries. 
United States v. Levi W. Nelson. 

District court, district of Oregon (5 Sawyer, 68). 

Timber on Public Lands. 

The enactment of the preemption, homestead, and mining laws by Congress 
has modified the operation of the act of March 2, 1831 (sec. 2461, Eev. Stat.), 
prohibiting absolutely the cutting or removal of timber on the public lands, so 
that persons occupying portions of such lands under such laws may, before 
becoming the owners thereof, cut and use the timber thereon so far as the same 
may be necessary to accomplish the purpose for which the land is occupied. 

See U. S. -?. O. A. Dodge, cited on page 180. 
The Timber Cases. 

District court, western district of Missouri (11 Fed. Rep., 81). 

Public Lands — Rights of Settlers. 

Where a person enters upon public land with a view of preempting it, and 
before the expiration of the year during which he ought to have proven up his 
claim he homesteaded his preemption, the preemption as well as the homestead 
must have been taken in good faith for the purpose of residence, settlement, and 
improvement. 

Same — Right to Cut Timber. 

A person entering on the public land for the purpose of preemption, or to 
secure a homestead, in good faith, may cut the timber standing thereon for the 
purposes of cultivation, and after applying such portion as can be used for the 
improvement he may sell or dispose of the balance. 

Same — Restriction as to Right. 

A settler on the public lands has no authority to go outside of the improve- 
ments, cut or sell timber, and thus denude the lands and destroy the value of 
the public domain, even though he intends to acquire the title under his claim. 

See "Use of public timber by virtue of right of occupanc}-," case of 
United States r. Cook (19 Wall., 591), on page 62. 

See also decision in case of Isadore Cohn (20 L. D., 238), cited on 
page 39. 

United States ^'. Yoder. 

District court, district of Minnesota (18 Fed. Rep., 372). 

Action of Trover — Right op Settlers to Cut Timber and Improve Land 
Before Preemption. 

A settler claiming in good faith a homestead can, for the purpose of improving 
the land, cut down the necessary timber before he files his entry in the land 
office. There is nothing in the homestead act requiring an entry in the land 
office before settlement. 



116 Timher on Homestead Entries. 

United States v. Lane. 

Circuit court, eastern district of Wisconsin (19 Fed. Rep., 910). 

Public Land — Entry — Right to Cut Timber. 

One who has entered upon pubHc land according to law for the purpose of 
claiming a homestead therein, and is residing thereon in good faith and improv- 
ing it for agricultural purposes, is entitled to cut so much timber from the land 
as is necessary for his actual improvements; but until he has received his patent 
he can not cut timber for any other purposes nor mider any other conditions. 

United States v. Perkins et al. 

Circuit court, western district of Louisiana (4-1 Fed. Rep., 670). 

Public Lands — Cutting Timber — Subsequent Purchase. 

Where a homesteader, who has never had possession of the land included in 
his homestead claim, and whose entry has been canceled, buys the land from 
the Government, such purchase does not pass title to timber which he had cut 
from the land before his purchase and after he had learned that his homestead 
entry was invalid. 

Same — Measure of Damages. 

In an action by the United States for the value of timber bought Ijy defendant 
from a trespasser who had knowingly cut it from the public land, the measure 
of damages is the value of the timber at the time of the purchase. 

Stone i\ United States. 

Circuit Court of appeals, ninth circuit (64 Fed. Rep., 667). 
******* 
Public Lands — Settlers — Cutting and Selling Timber — Liability op Pur- 
chasers. 

Where settlers on public lands file declarations under the preemption or home- 
stead laws, with intent to defraud the Government by removing and selling the 
timber thereon, and then leaving them, a purchaser of such timber is liable to 
the Government for its value. 
Same — Action for Value op Timber Purchased — Burden of Proof. 

In an action by the United States to recover the value of timber cut from pub- 
lic lands, where defendant claims that he purchased the timber from settlers on 
such lands under the preemption and homestead laws, the burden is on him to 
show the good faith of such settlers, and their right to cut and sell such timber. 

United States ^'. Murphy. 

Circuit court, western district of Michigan, northern division (32 Fed. Rep., 376). 

Public Lands — Cutting Timber — Homesteader's Rights. 

While holding land under a homestead entry the homesteader can only cut 
and sell the timber from such portion or parts of the land as are being cleared 
for cultivation or settlement. 
Same — Cutting Timber — Mistaken View op Rights. 

The fact that defendant was induced, through the wrong representations of 
the register of the land office, to believe in the unrestricted right of the home- 
steader to cut timber from his entry, does not estop the Government from prose- 
cuting him for such unlawful cutting. 



Timber on Homestead Entries. 117 

Same — Cutting Timber — Criminal Intent. 

It is no defense to a prosecution for unlawful cutting of timber from public 
land that there was no criminal intent in the cutting. 
Same — Acts Relating to — Construction of, by Secretary of Interior. 

The interpretation placed upon public-land acts by the Secretary of the Inte- 
rior is not binding upon the courts. 

Cunningham et al. i). Metropolitan Lumber Co. 

Circuit court of appeals, sixth circuit (110 Fed. Rep., 332). 
******* 
A homestead settler, who has not perfected his right so as to entitle him to a patent, 
has no right or authority to cut and remove timber from the land, and can give 
no title to such timber as against the United States. 



In the case of a homesteader purporting to convey by bill of sale 
right to the timber on his claim subsequent to abandonment of the 
land, parties taking the timber under such "bill of sale'' held to be 
trespassers and liable to the United States for the full value of the 
timber, wherever and in whatever condition found. (See Land Office 
Report for 1889, p. 291, case of U. S. v. John C. Kirby et al.) 

United States v. Niemeyer et al. 

District court, eastern district of Arkansas (94 Fed. Rep., 147). 

1. Public Lands — Cutting of Timber — Rights of Homesteader. 

A homesteader, before he has become entitled to a patent to the land, is not 
authorized to sell timber therefrom for the purpose of obtaining money with 
which to hire improvements made which the law contemplates he shall make 
himself. He has no right to sell timber for any purpose from any part of the 
land except such as he intends in good faith to put into immediate cultivation; 
and a use of the land for grazing purposes, without plowing it up, is not cultiva- 
tion as meant by the law. 

2. Same — Criminal Liability for Cuttincj Timber — Intent. 

If a person cuts and removes timber from lands which he knows to belong to the 
United States, and to be occupied under a homestead claim, under a purchase or 
license from the homesteader, and knowing also that the land from which it is 
taken is not to be put into immediate cultivation, he is presumed to have intended 
to take the timber unlawfully, and is subject to prosecution therefor. 

Department of the Interior, 

General Land Office, 

^Vcm^lington, B. C, July 2, 1898. 
Sir: I have the honor to acknowledge the receipt of your letter of 
June 28, 1898, in which you quote from a letter of Hon. Jacob Trie- 
ber, United States attorney for the eastern district of Arkansas, dated 
June 18, 1898, to this office, as follows: 

The court held that a homesteader could convey no valid title to timber cut from 
his entry before a patent was issued, except such timber as was cut from the land he 
was clearing for actual cultivation. 



118 Timber on Homestead Entries. 

In regard to said ruling you state that your impression has been 
"that when a homesteader has earned his patent, ]\y complying in 
good faith with all the requirements of the law, making his tinal proof 
and being given his final receipt, the onh'' act remaining to complete 
the transaction being the mere formal issue of the patent by your 
(this) office, the homesteader could convey a valid title not only to the 
timber on the land, but to the land itself, if he should choose to sell 
it," and you ask for the holding of this ofiice on that point. 

In reply you are advised that the ruling of the court above specified 
appears to be strictly in accordance with the decision of the Supreme 
Court of the United States in the case of Shiver v. United States (159 
U. S., 491), in which it is held, in brief, that public land duly and 
properly entered for a homestead under the homestead laws of the 
United States continues to be property of the United States pending 
proceedings before and a final disposition of said entry by this Depart- 
ment, " and until a patent is issued." 

All action taken by this office involving the question of title to lands 
embraced in homestead entries is based upon said decision. The gen- 
eral impression, referred to in your letter, that, after making final 
proof and receiving final receipt and certificate on a homestead entry, 
the claimant can legally sell or dispose of the timber thereon, or even 
the land itself, is based upon the presumption that the entryman has, 
up to that time, in good faith, fully complied with all of the require- 
ments of law as to residence, cultivation, and improvements; that his 
proof is not false or fraudulent, and that his entr}^ is legal and with- 
out defects. 

The issuance of a final receipt and certificate on an entry onl}^ in- 
vests the entryman with an equitable title to the land, which, upon 
proper showing of defect, fraud, or illegality, can be attacked by this 
office at any time within two 3'ears from date of the issuance of said 
receiver's final receipt, when, in the absence of any pending contest 
or protest against the validity of an entry, the title thereto is con- 
firmed intheentr3"man by the proviso to section 7 of the act of March 
3, 1891 (26 Stat., 1095). 

A homestead claimant, therefore, does not secure an absolute and 
clear title to the land or the timber thereon (which is a part of the 
realty) until patent is actuall}- issued thereon by the Government, and, 
in the absence of patent, the title is not confirmed in him until a period 
of two years has elapsed, without protest or contest, since the issu- 
ance of the receiver's final receipt. 

******* 

Very respectfully, Binger Hermann, 

ComTYiissioner. 
Hon. Jas. K. Jones, 

United States Senate. 



Tiinber on Homestead Entries. 119 

The United States v. Henry Hazlett. 

Circuit court, district of Idaho. 
Beatty, J. : 

This action is for the replevin of a lot of cedar posts, and is submitted 
to the court for hearing upon an agreed statement of facts from which 
it appears that such posts were cut by defendant from a tract of 10 
acres of the public lands of the United States; that said 10 acres were 
a part of a tract of 160 acres upon which one Brennan had resided for 
two years with the intention of entering it as a homestead when sur- 
veyed; that defendant had a contract with the Union Pacific Railway 
Company to deliver it posts at Pocatello to fence its railroad track 
which had been completed and in operation for over eight j^ears prior; 
that such place of delivery was 700 miles from the place of cutting such 
posts; that said Brennan intended to clear said 10 acres for agricul- 
tural purposes, and that the defendant, for the purpose of fulfilling his 
said contract with the railway compan}^, entered into a contract with 
said Brennan for the timber on said 10 acres and thereafter cut and 
removed the same from the land and had possession thereof when it 
was seized by plaintifi'. 

The first question is, whether the contract between the defendant and 
the homesteader for the timber is a valid one as against the plaintiff. 
The rule is well settled b}^ numerous decisions that in actions by the 
United States, and especially in civil actions, for the cutting of timber 
on the public lands, it devolves upon the Government only to show the 
character of the lands and the cutting of the timber thereon, whereupon 
the onus probandi rests with the defendant to show such cutting was 
lawful. 

It is also well settled that the homesteader can not cut or remove 
timber from his homestead for the sole purpose of selling it, but he can 
from time to time cut onlj' such as is actually necessary for his use 
upon the premises in making the necessary improvements thereon and 
in clearing the land in good faith for agriculture or some other useful 
purpose; that if after so cutting timber in the actual process of clear- 
ing the land and making use thereof in his necessary improvements 
there is a surplus he may sell it. 

In an action brought against a homesteader for an unlawful cutting 
or disposition of timber it devolves upon him to produce the facts 
showing his good faith. He should show the improvements he has 
made upon the land, the buildings and fences erected, the land cleared 
and how far cleared, the character of his residence upon the land, and 
any other facts going to show that his occupation of and acts concern- 
ing the land were those of an actual homesteader. 

It is also the law that if the homesteader attempts to dispose of 
timber from his claim contrary to law the person contracting with or 
purchasing of him gets no title. If, therefore, the facts in this case do 



120 Timber mi Homestead Entries. 

not show that the homesteader had a ritjht to sell the timber under the 
circumstances lie did, it follows that the defendant procured no title 
thereto. 

What now are the facts and to Avhat conclusion do the}^ lead'^ It 
appears that defendant, to carry out his contract with the railway com- 
pany, contracted with the homesteader for the timber upon 10 acres of 
the homestead tract, and proceeded to cut and remove it. It does not 
appear that the land was cleared or that any improvements of any 
kind were made upon the land or that the land was in any way bene- 
fited by the acts of either party; and so far as the facts go it only 
appears that the defendant cut and removed this timber to be disposed 
of to the railway company. It is alleged that the homesteader had 
resided on the land for two years and intended to clear and enter it; 
but something more than mere intentions must appear, and if he had 
resided there the motive of his residence and occupation must be shown. 
The facts as stated, instead of leading to the conclusion that the land 
was actually occupied as a homestead and the timber was removed 
therefrom in good faith in the process of clearing and improving the 
land, rather point to the conclusion that defendant's contracts were 
made to avoid the law and cut the timber simply for the purpose of 
fulfilling his railway contract, and that Brennan's sole object was to 
receive money for the timber and not to clear the land or improve it. 
If such contracts and such facts will justify the cutting and removal of 
timber from the Government lands, then there is nothing in the law to 
prevent the destruction of all timber on all lands subject to occupation 
and entry. I can not so construe the law and must conclude the 
defendant did not by the acts stated procure title to the posts involved 
in this action. 

I do not mean to be understood as holding that a homesteader may 
not employ others to clear or improve his land; but when he does, it 
must appear that such employment is made in good faith to have the 
land actually cleared and not to leave the contract open to a well- 
grounded suspicion that it is to avoid the law and to dispose of the 
timber for profit instead of improving the land. 

The question was raised whether the law gives the railway company 
the right to procure from the public domain timber supplies for its 
use and, if it does, whether it does not follow that defendant's contract 
with Brennan, being for the purpose of furnishing such supplies, is 
lawful. The first Congressional act granting railroads rights to tim- 
ber and other material from the public lands is that of 1875 (1 Supp. 
Rev. Stat., 1890), by which it is provided that they may take "from 
the public lands adjacent to the line of said road, material, earth, stone, 
and timber necessary for the construction of said railroad." 

The evident construction of this act, as has been held, is that it 
applies only to those lands lying along the line of the road, and does 



Timher on Homestead Entries. • 121 

not include those situated a long distance from it; also that the right 
continues only during the time of the original construction of the road, 
and not to subsequent repairs, changes, or improvements. (Denver 
R. R. v.. United States, 34 Fed. Rep., 838.) 

It does not appear by the facts whether these posts were for the first 
building or the repair of fences, Imt this is probabl}- immaterial, for it 
is doubtful whether the act was intended to include the building of 
fences as a part of the construction of the road, and especially fences 
constructed over eight ^^ears after the completion and operation of the 
road. Moreover, the timber was not cut from lands adjacent to the line 
of the road, but on those far distant from it. The subsequent acts 
modifying or granting additional timber rights expressly exclude rail- 
roads from their benefits. (1 Supp. Rev. Stat., 106, 939.) It must fol- 
low that the railway company had no such right to the timber on the 
public lands for the purpose named in this case as will justify or sus- 
tain the contract of defendant with Brennan. Certainly the railwa}^ 
company has the riglit to purchase any timber of anyone having the 
right to sell. 

The defendant having no title to the posts in controversy', judgment 
for such posts or their value of $125 and costs of action against him is 
now ordered. 

CUTTING TIMBER ON SHARES. 
United States i\ James Autret. 

District court, southern district of Alabama, May term, 1894. 

The charge to the jury reads as follows: 

"The court instructs you that the defendant had the right to cut, 
or to cause to be cut, timber on his homestead land suitable and sufii- 
cient to build necessar}' and convenient houses and fences for his home, 
and to have that timber sawed into suitable lumber to make such 
improvements on his homestead, and the court further instructs you 
that the defendant could have done what is practically the same thing-, 
and that is, could have exchanged timber for lumber to make such 
improvements; that is to say, could have exchanged timber for lumber 
of equal value, but only so much timber as was necessary to make the 
lumber for such improvements; so much as was necessary for such 
improvements, excluding the cost of cutting, sawing, and hauling such 
timber, etc., to and from the mill; and if he only did this, and did it 
in good faith, he should be acquitted. 

"Or, if he made such exchange for lumber with apart of the timber 
and did so in good faith to make necessary improvements, then, as to 
such part he should be held guiltless, and guilty onh^ as to the excess 
of timber (pine trees) over and above wdiat was necessary to make the 
lumber for his improvements. 



122 * Timber on Homestead Entries. 

"Let me illustrate what 1 mean to make the proposition clearer to 
you. If the defendant wanted 9,000 or 10,000 feet of lumber to make 
his improvements, he had the right to cut or cause to be cut as many 
trees as were necessary for that purpose, whether it be 30, 40, or 50 — 
whatever number of trees j^ou find from the evidence was necessary for 
that purpose — but he could not lawfully cut more than that; any cutting 
in excess of that number of trees would be an unlawful cutting. 

" He had not a right to cut trees on his homestead for the purpose of 
sale or profit, or to pa}' debts or loans of money, or to pay his expenses, 
or to buy supplies — in short, no right to cut them for sale for any pur- 
pose — and he had no right to cut them and pay any such debts or 
expenses with them, or to cut them for any such purposes." 



Shiver v. United States. 

Certificate from the circuit court of appeals for the fifth circuit (159 U. S., 491). 

Land duly and properly entered for a homestead under the homestead laws of the 
United States is not, from the time of entry, and pending proceedings before the 
Land Department, and until final disposition by that Department, so appropriated 
for special purpose, and so segregated from the public domain as to be no longer 
lands of the United States within the purview and meaning of section 2461 of 
the Revised Statutes of the United States; but, on the contrary, it continues to 
be the property of the United States for five years following the entry, and until 
a patent is issued. 

Where a citizen of the United States has made an entry upon the public lands of the 
United States under and in accordance with the homestead laws of the United 
States, which entry is in all respects regular, he may cut such timber as is nec- 
essary to clear the land for cultivation, or to build him a house, outbuildings, 
and fences, and perhaps may exchange such timber for lumber to be devoted to 
the same purposes; but he can not sell the timber for money, except so far as it 
may have been cut for the purpose of cultivation; and in case he exceeds his 
rights in this respect, he may be held liable in a criminal prosecution under 
section 2461 or section 5388 of the Revised Statutes of the United States, or either 
of said sections, for cutting and removing, after such homestead entry, and 
while the same is in full force, the standing trees and timber found and being 
on the land so entered as a homestead. 

In holding that, as between the United States and a homestead settler, the land is 
to be deemed the property of the former, at least so far as is necessary to protect 
it from waste, the court is not to be understood as expressing an opinion whether, 
as between the settler and the State, it may not be deemed to be the property of 
the settler, and therefore subject to taxation. 

Shiver was tried upon an information filed in the district court for 
the southern district of Alabama for cutting and removing 200 pine 
trees from a quarter section of land in Monroe County, which he had 
entered as a homestead on January 26, 1894. It appeared that the cut- 
ting began about the 1st of April, and that all the standing timber, 
amounting to about 500 trees, had been, either before or after complaint 
was made against him, cut and removed from the land; that the defend- 



TiinheT on Homestead Entries. 128 

ant and his family were living on the land, and had erected a box house 
worth about $100; that the lumber was out and hauled from the land by 
defendant's procurement; that it had been cut all over the land; that 
the land cleared amounted to about an acre; that the house was not yet 
completed; that the timber was taken to the mill of the Bear Creek 
Mill Company, of which defendant was an emploj^ee ; that defendant was 
not living- on the land when the cutting began, and that the trees would 
make upward of 150,000 feet of lumber; that thev were not cut for the 
purpose of clearing the land for cultivation, and that such timber was 
cut within four months after defendant had made his homestead entrj'-; 
that the trees yielded an aggregate of the sum of $126, while the 
improvements made upon the land cost $229. The lumber put into the 
building amounted to 9,765 feet. 

There was conflicting evidence as to the motives of the defendant 
in cutting and selling the timber. He claimed that the logs were 
exchanged for lumber and building material, all of which were put into 
his improvement; the Government claiming that it was cut for the 
purpose of sale and profit. 

The court instructed the jury that defendant had the right to cut 
timber on his homestead suitable and sufiicient to build necessary and 
convenient houses, fences, etc., for a home, and to have that timber 
sawed into suitable lumber to make such improvements on his home- 
stead; that he could have exchanged timber for lumber to make such 
improvements, but only so much as was necessary, and that if he only 
did this, and did it in good faith, he should be acquitted. On the con- 
trar}", that any cutting in excess of the number necessary to make his 
improvements would be unlawful. That he had no right to cut trees 
for the purpose of sale for profit, or to pay debts or loans of mone}^, or 
to pa}" his expenses, or to buy supplies; in short, he had no right to cut 
them for sale for any such purpose. 

Defendant was convicted, and appealed to the circuit court of appeals, 
which certified to this court the following questions: 

1. Whether lands duly and properl}^ entered for a homestead, under 
the homestead laws of the United States, are from the time of entry 
and pending proceedings before the Land Department and until final 
disposition by that Department, so appropriated for special purpose, 
and so segregated from the public domain as to be no longer lands of 
the United States within the purview and meaning of section 2461 of 
Revised Statutes of the United States? 

2. Where a citizen of the United States has made an entry upon the 
public lands of the United States under and in accordance with the 
homestead laws of the United States, which entry is in all respects regu- 
lar, can such citizen be held liable in a criminal prosecution under sec- 
tion 2461 or section 5388 of the Revised Statutes of the United States, 
or either of said sections, for cutting and removing, after such home- 



124 Tirnher on Homestead Entries. 

stead entry, and while the same is in full force, the standing trees and 
timber found and being- on the land so entered as a homestead i 
Mr. Justice Brown delivered the opinion of the court: 
This case turns upon the question as to what are " lands of the United 
States" within the meaning of Revised Statutes, section Q-iGl, providing 
for the punishment of persons guilty of cutting timber upon such lands 
other than for the use of the Navy. Obviously the question is not 
whether such lands are so far withdrawn from sale as to be no longer 
subject to appropriation by any railroad or other person or corporation 
to which a land grant has been made, but whether they are still so far 
the propert}' of the United States that the Government may protect 
itself against an unlawful use of them. Indeed, this court has settled 
by repeated decisions that the claim of a homestead or preemption entry 
made at any time before filing a map of definite location of a railway 
prevents the lands covered by such claim from passing to such railway 
under its land grant, even though such entry be subsequently aban- 
doned. (Kansas Pacific Railway Co. v. Dunmeyer, 113 U. S., 639; Has- 
tings, &c. Ry. Co. V. Whitney,' 132 U. S., 357- Whitney v. Taylor, 158 
U. S., 85; Sioux City Land Co. v. Griffey, 143 U. S., 32.) The same 
principle applies where lands have been reserved for any purpose what- 
ever. (Wilcox V. Jackson, 13 Pet., 498; Witherspoon v. Duncan, 4 
Wall., 210; Newhall v. Sanger, 92 U. S., 761; Kansas Pacific Railway 
V. Atchison Railway, 112 U. S., 414.) 

While these cases indicate that lands once appropriated to a certain 
purpose thereby cease to be available for another purpose, there is 
nothing in them to show that the United States loses its title to such 
lands by the first appropriation, or that they cease to be the property 
of the Government. Upon the contrary, it was said by this court, as 
early as 1839, in Wilcox v. Jackson (13 Pet., 498, 516), that ''with the 
exception of a few cases, nothing but the patent passes a perfect and 
consummate title." So in Frisbie v. Whitney (9 Wall., 187, 193): 
"There is nothing in the essential nature of these acts" (entering upon 
lands for the purpose of preemption) "to confer a vested right, or 
indeed any kind of claim to land, and it is necessary to resort to the 
preemption law to make out any shadow of such right." In this case 
the following extract from an opinion of Attorne3^-General Bates was 
quoted with approval : 

A mere entry upon land, with continued occupancy and improvement thereof, 
gives no vested interest in it. It may, however, give, under our national land sys- 
tem, a privilege of preemption, but this is only a privilege conferred on the settler 
to purchase lands in preference to others. * * * His settlement protects him 
from intrusion or purchase by others, but confers no right against the Government. 

A number of authorities were cited to the same effect. It was held 
that it was within the power of Congress to withdraw lands which had 
been preempted from entry or sale, though this might defeat the 
imperfect right of the settler. In the Yosemite Valley case (16 Wall., 



Timher on Homestead Entries. 125 

77) the construction given to the preemption law in Frisbie v. Whit- 
ney was approved, the court observing (p. 88) : 

It is the only construction which preserves a wise control in the Government over 
the public lands, and prevents a general spoliation of them under the pretense of 
intended preemption and settlement. The settler, being under no obligation to con- 
tinue his settlement and acquire the title, would find the doctrine advanced by the 
defendant, if it could be maintained, that he was possessed by his settlement of an 
interest beyond the control of the Government, a convenient protection for any 
trespass and waste in the destruction of timber or removal of ores which he might 
think proper to commit during his occupation of the premises. 

The right which is given to a person or corporation by a reservation 
of public lands in his favor is intended to protect him against the 
actions of third parties, as to whom his right to the same may be abso- 
lute; but as to the Government his right is onl}^ conditional and 
inchoate. B}^ the homestead act. Revised Statutes, section 2289, cer- 
tain classes of persons therein specified are entitled to enter a quarter 
section of land, subject to preemption at a certain price, upon making 
an affidavit of facts (sec. 2290) before the register or receiver, includ- 
ing in such affidavit a statement that " his entry is made for the pur- 
pose of actual settlement and cultivation, and not either directly or 
indirectly for the use and benefit of any other person," By a later act, 
adopted in 1891 (26 Stat., 1095), this affidavit is now required to state 
that the settler " will faithfull}'^ and honestly endeavor to comph^ with 
all the requirements of law as to settlement, residence, and cultivation 
necessar\^ to acquire title to the land applied for; that he or she is not 
acting as the agent of any person, corporation, or syndicate in making 
such entry, nor in collusion with any person, corporation, or syndicate 
to give them the benefit of the land entered, or any part thereof, or 
the timber thereon." By section 2291, no patent shall issue until the 
expiration of five years from the date of the entry, the settler being 
required to prove by two credible witnesses that he has resided upon 
or cultivated the land for such term of five j^ears immediateh" succeed- 
ing the time of filing the affidavit, and that no part of such land has 
been alienated, except for certain public purposes. By section 2297, if, 
before the expiration of the five years, the settler changes his residence 
or abandons the land for more than six months at any time, the lands 
so entered shall revert to the Government; and by section 2301, the 
settler may, at any time before the expiration of the five years, obtain 
a patent for the lands, by paying the minimum price therefor and mak- 
ing proof of settlement and cultivation, as provided by law, granting 
preemption rights. 

From this resume of the homestead act it is evident, first, that the 
land entered continues to be the property of the United States for five 
3^ears following the entry and until a patent is issued; second, that such 
property is subject to div^estiture, upon proof of the continued residence 
of the settler upon the land for five years; third, that meantime such 
settler has the right to treat the land as his own, so far, and so far only, 



126 Tiiiiber on Homestead Entries. 

as IS necessaiy to carry out the purposes of the act. The object of this 
legislation is to preserve the right of the actual settler, but not to open 
the door to manifest abuses of such right. Obviously the privilege of 
residing on the land for five years would l)e ineffectual if he had not 
also the right to build himself a house, outbuildings, and fences, and to 
clear the land for cultivation, and to that extent the act limits and mod- 
ifies the act of 1831, now embraced in Revised Statutes, section 2461. 
It is equally clear that he is bound to act in good faith to the Govern- 
ment, and that he has no right to pervert the law to dishonest purposes, 
or to make use of the land for profit or speculation. The law contem- 
plates the possibility of his abandoning it, but he may not in the mean- 
time ruin its value to others who may wish to purchase or enter it. 

With respect to the standing timber, his privileges are analogous to 
those of a tenant for life or years. In this connection, it is said by 
Washburn in his work upon Real Property (first edition, vol. 1, p. 108): 

In the United States, whether cutting of any kind of trees in any particular case is 
waste, seems to depend upon the question whether the act is such as a prudent 
farmer would do with his own land, having regard to the land as an inheritance, and 
whether doing it would diminish the value of the land as an estate. 

Questions of this kind have frequently arisen in those States where the lands are 
new and covered with forests, and where they can not be cultivated until cleared of 
the timber. In such case, it seems to be lawful for the tenant to clear the land if it 
would be in conformity with good husbandry to do so, the question depending upon 
the custom of farmers, the situation of the country, and the value of the timber. 
* * * Wood cut by a tenant in clearing the land belongs to him, and he may sell 
it, though he can not cut the wood for purposes of sale; it is waste if he does. 

By analogy we think the settler upon a homestead may cut such 
timber as is necessary to clear the land for cultivation, or to build him 
a house, outbuildings, and fences, and, perhaps, as indicated in the 
charge of the court below, to exchange such timber for lumber to be 
devoted to the same purposes, but not to sell the same for money, except 
so far as the timber may have been cut for the purpose of cultivation. 
While, as was claimed in this case, such mone}^ might be used to build, 
enlarge, or finish a house, the toleration of such practice would open 
the door to manifest abuses, and be made an excuse for stripping the 
land of all its valuable timber. One man might be content with a 
house worth $100, while another might, under the guise of using the 
proceeds of the timber for improvements, erect a house worth several 
thousands. A reasonable construction of the statute — a construction 
consonant both with the protection of the property of the Government 
in the land and of the rights of the settler — we think restricts him to 
the use of the timber actually cut, or to the lumber exchanged for such 
timber and used for his improvement, and to such as is necessarily cut 
in clearing the land for cultivation. 

While this question never seems to have arisen in this court before, 
in United States v. Cook (19 Wall., 591)— a suit in trover for the value 



Timber on Homestead Entries. 127 

of timber cut from an Indian reservation — it was held that while the 
right of use and occupancy by the Indians was unlimited, their right 
to cut and sell timber, except for actual use upon the premises, was 
restricted to such as was cut for the purpose of clearing the land for 
agricultural purposes; that while thej^ were at liberty to sell the timber 
so cut for the purpose of cultivation, they could not cut it for the purpose 
of sale alone. In other words, if the cutting of the timber was the 
principal, and not the incident, then the cutting would be unlawful, 
and the timber when cut became the absolute property of the United 
States. Their position was said to be analogous to that of a tenant for 
life, the Government holding the title, with the rights of a remainderman. 

In the courts of original jurisdiction, it has been uniformly held that 
a similar rule applied to homestead entries. (United States v. McEntee, 
23 Internal Revenue Record, 368; United States v. Nelson, 5 Sawyer, 
68; The Timber cases, 11 Fed. Rep., 81; United States ^'. Smith, 11 Fed. 
Rep., 493; United States v. Stores, 14 Fed. Rep., 824; United States v. 
Yoder, 18 Fed. Rep., 372; United States v. Williams, 18 Fed. Rep., 475; 
United States v. Lane, 19 Fed. Rep., 910; United States r. Freyberg, 
32 Fed. Rep. , 195; United States v. Murphy, 32 Fed. Rep., 376.) This 
general concensus of opinion is entitled to great weight as authority. 

While we hold in this case that, as between the United States and 
the settler, the land is to be deemed the property of the former, at 
least so far as is necessary to protect it from waste, we do not wish to 
be understood as expressing an opinion whether, as between the settler 
and the State, it may not be deemed the propert}^ of the settler, and, 
therefore, subject to taxation. (Carroll v. Safford, 3 How., 441; With- 
erspoon v. Duncan, 4 Wall., 210; Railroad Co. v. Prescott, 16 Wall., 
603; Railroad Co. v. McShane, 22 Wall., 444; Wisconsin Ry. Co. v. 
Price County, 133 U. S., 49.6.) 

As the land in question continued to be "the land of the United 
States," within the meaning of section 2461, the first question must 
be answered in the negative and the second in the affirmative. 

Teller v. United States. 
Circuit court of appeals, eighth circuit (113 Fed. Rep., 273). 

1. Public Lands — Timber — Cutting — Intent — Misdemeanor — Charge. 

Under Rev. St., 1878, § 2461, 20 Stat., 89, and 27 Stat., 348, making it a misde- 
meanor for any person to cut timl)er on any lands of the Ignited States situate 
in any of the public-land States with intent to export or dispose of the same, 
where the cutting is admitted, the only intent necessary to show is the intent to 
export or dispose of the timber. 

2. Same — Evidence — Purchase of Other Lands. 

On the trial of one accused of unlawfully cutting timber on land of the United 
States, evidence that about the time of the cutting defendant purchased and 
paid for the full quantity of similar land, which he could purchase under tha 
act of June 3, 1878, is inadmissible to show that he would not intentionally 
commit a trespass. 



128 Teller v. United States {113 Fed. Rep., '27 S). 

3. Same — Violation of Law — Custom. 

On the trial of one accused of unlawfully cutting timber on land of the United 
States, evidence of a custom in that locality, known to the General Land Office, 
of entering on land and cutting the timber therefrom before patent was obtained, 
is inadmissible, since a custom to violate the law can not justify itself. 

4. Same — Honest Intent. 

Where a defendant unlawfully cut timber on public land the fact that he 
acted in accordance with a general custom in that locality is not evidence of an 
honest intent on his part. 

5. Same. 

Where defendant unlawfully cut timber on public land, the fact that before 
cutting he endeavored to ascertain whether the land was surveyed, and also 
notified a special agent of the Government that he was cutting the timber, and 
was not warned off for three weeks, is not evidence of an honest intent. 

6. Same — Charge. 

On the trial of defendant for unlawfully cutting timber on public land, court 
charged that, in order to convict, the jury must find that there existed in hia 
mind a willful and wrongful purpose to obtain the timber in violation of law; 
and that if he entered on public land, knowing it was such, without having 
complied with the provisions of law giving him a right to do so, and cut timber 
therefrom, they would be authorized to find the requisite criminal intent. 
Held, that such charge fairly stated the law and was as favorable to the defend- 
ant as he was entitled to. 

7. Same — Evidence — Intent. 

Where defendant admits that he had cut timber on 300 acres of unsurveyed 
Government land, to which he had no claim or color of title, and there is evi- 
dence that he was informed by the register of the land office that he could not 
acquire title because the lands were not open to entry, and that he promised his 
workmen that he would stand between them and the Government, and that he 
had fully exhausted all his privileges of purchasing such lands, the intent con- 
stituting the offense of unlawfully cutting timber on Government land, defined 
by Rev. Stat., § 2461, and act June 3, 1878, is suflficiently shown. 

8. Same — Application to Purchase — Right to Cut Timber Before Patent — 

License to Cut. 
An occupant of a mineral claim, who has applied for a patent before the pur- 
chase price is paid and before he receives a certificate, has no right to cut the 
timber on such claim with intent to export or remove the same, and a license 
from him to so cut the timber is no protection to the licensee as against the 
Government. 

9. Same — Mineral Claim — Separation from Public Domain. 

The exclusive right to occupy and work a mineral claim, given to the locator 
by the mining laws during his occupancy, does not segregate such claim from 
the public domain so as to exclude such land from the operation of Rev. Stat., 
2461, 20 Stat., 89, and 27 Stat., 348, making it a misdemeanor for any person to 
cut timber on the public lands. 

Adams, district judge, delivered the opinion of the court. 

On November 25, 1899, a criminal information was filed in the dis- 
trict court of the United States for the district of W3'Oming against 
John C. Teller, the plaintiff in error, charging him with having, 
between January and September of the year 1898, willfully and unlaw- 
fully cut and procured to be cut 150,000 feet of timber growing on 



Teller v. United States {113 Fed. Rtp., 273). 129 

the public lands of the United States in said district with intent to 
export and dispose of the same. 

In due course a trial was had, the defendant found g"uilty, and sen- 
tenced to pay a fine of $1,000. 

The statutes under which this information was lodged, section 2461, 
Rev. Stat., 1878, act of June 3, 1878 (20 Stat., 89), and act of August 4, 
1892 (27 Stat., 348), make it a misdemeanor for any person to cut, or 
procure to be cut, timber growing on any lands of the United States 
situate in an3^of the "public-land States'' with intent to export or dis- 
pose of the same. 

The defendant is accused of cutting timber from two certain tracts 
of public land in Carbon County, Wyo., one located on Cottonwood 
Creek, and supposed to have been land subject to entry and sale under 
ihe act of June 3, 1878, commonh^ known as the stone and timber act, 
and the other being a certain mining claim known as the Montezuma 
Placer. 

The record shows that an admission was made by the defendant at 
the trial "that he cut timber on 300 acres of unsurveyed Government 
land to which he had no claim or color of title." This admission 
relates to the cutting on the first-mentioned tract, located on Cotton- 
wood Creek. 

The trial court charged the jury that before they could convict the 
defendant they must find that there existed in his mind "a willful and 
wrongful purpose to obtain the timber in violation of the law," and 
also that " if the defendant entered upon the lands of the United 
States, knowing the same to be a part of the public domain of the 
United States, and without complying with the requirements of the 
statute, or attempting to do so, cut, or caused to be cut, timber grow- 
ing thereon, you will be authorized to find that such cutting was 
willful and intentional, and, if you do so find, the defendant would be 
guilty, and you should say so in your verdict." In other words, the 
trial court practically instructed the jury that the intentional cutting of 
timber found growing on lands known by the person cutting the same 
to be a part of the public domain constituted a misdemeanor denounced 
by law. The defendant takes issue with this declaration, and contends 
that the jur}- should have been told that there must have been an 
actual evil or criminal intent, or bad purpose, amounting to moral 
culpability, in order to convict, and that the court erred in excluding 
evidence tending to show that the defendant, although cutting timber 
from lands known by him to have been public lands, cut the same with 
an honest purpose. 

The particular facts ofl'ered to be proved and relied on by defendant 

to establish such honest purpose with respect to the cutting from the 

first-mentioned land are as follows: In June, 1898, the defendant 

entered 160 acres, and four other persons each entered 160 acres of 

21150—03 9 



130 Teller v. United States {113 Fed. Rep., 273). 

the stuiie character of lands lying in the near vicinity to those upon 
Cottonwood Creek now in question, for which defendant paid to the 
United States the price required by the stone and timber act, namely, 
$2.60 per acre, or a total of $2,400. Defendant's counsel contend that 
such purchase b}' him of similar lands and payment therefor at about 
the same time as is laid in the information is a circumstance which 
ought to have gone to the jury as evidence that he would not inten- 
tionally commit a trespass forthe sake of obtaining timber of the same 
character a short distance awa3\ We entirely fail to appreciate the 
force of this contention. The act of June 3, 18Y8, supra, provides in 
express terms that the timber lands therein contemplated may be sold 
to citizens ""in quantities not exceeding 100 acres to any one person 
or association of persons." Defendant had already purchased his full 
limit of 160 acres, if, indeed, he had not indirectly secured the four 
other quarter sections above referred to, and conceding that he had 
paid for that land, it can not be that such fact would have any ten- 
dency to show that he had an honest purpose in trying to appropriate 
other lands. 

He had exhausted his right already, and he knew it, and such evi- 
dence, in our opinion, would tend to impugn the motive of defendant 
in trying to secure other forbidden lands rather than palliate his con- 
duct in so doing. 

It is next urged that the court erred in excluding evidence of a cus- 
tom prevailing in the vicinity, where the offense was committed, of 
entering upon land and immediately proceeding to cut timber there- 
from before patent was obtained, and while proceedings to secure the 
same were pending, and that the custom was known to the General 
Land Office. 

This evidence of custom was offered in connection with an avowal 
by the defendant of his intention at the time he commenced cutting 
timber on the tract in question to purchase the same afterwards from 
the Government. 

We entirely agree with the trial court that this evidence was incom- 
petent. A general custom to violate the law can not on any principles 
of morality or law justify itself. Neither can it justify an individual 
instance of violation of the law. Neither can knowledge of such 
violation by an agent of the United States excuse or justify it. If it 
were otherwise, then the register of the land office at Cheyenne, or 
any other agent of the Government, and certainly the Commissioner 
of the General Land Office at Washington, could annul any act of 
Congress at pleasure. But, it may be said, these observations do not 
meet the argument that such custom, known to defendant and acted 
upon by him, is evidence of an honest intent and purpose on his part 
in doing that which was customary. 

Ever}' person is supposed and must be held to know the law. Any 



Teller v. United States {113 Fed. Rep., 273). 131 

laxity in enforcing this axiomatic and fundamental rule would lead to 
endless disorder and crime. Teller, therefore, knew, or must be held 
to have known, that any such custom as is claimed in his behalf was 
an unlawful custom, amounting in and of itself to a violation of law, 
and it must also be held, in the light of the facts disclosed by this 
record, that any such custom, if lawful and competent in other cases, 
could not be of any avail to him, because, as just seen, he had already 
exhausted his full privilege of purchasing timber land under the act 
of 1878, and could not directly in the manner prescribed b}' Congress, 
or in any other manner, lawfull}" acquire any more. If he could not 
do it directly or lawfull}', it is impossible for us to conceive how he 
can shelter himself under a general custom and thereby justify him- 
self in the attempt to accomplish the same purpose indirect!}" and 
unlawfully. 

In the case of United States v. Mock (149 U, S., 273) the Supreme 
Court considered a case of trespass for cutting and carrying away 
timber from public lands. The trial court had charged the jury as 
follows: 

It is a matter of history that the Government permitted the early pioneers, as they 
went ahead to make their homes for themselves, to go on the public domain and take 
such timber as was necessary for domestic use, and although there never was any law 
or license to that effect, it was done with knowledge of every department of the 
Government, legislative, judicial, and executive. * * * While I wish you to 
understand that I am not aware of any license having ever been given in the last 
sixty years to any party to go on the public domain and cut timber, no court has 
ever held, and no court would be justified in holding, that these men were all 
criminals who went on and put up a little mill for the purpose of aiding their 
neighbors in procuring lumber for domestic purposes. 

The court, speaking by Mr. Justice Brewer, commenting on the 
foregoing observations of the trial court, says: 

The specific portions [of the charge] to which the attention of the court was called 
at the time and exceptions taken are that which refers to the history of the attitude 
of the Government toward pioneers and others who took timber from Government 
lands for domestic use, and that which declared that no verdict could be returned in 
favor of the Government except for the value of the lumber manufactured. In these 
there was obvious error. * * * jJor were the observations of the court in refer- 
ence to the attitude of the Government justifiable. Whatever jaropriety there might 
be in such a reference in a case in which it appeared that the defendant had simply 
cut timber /or his own use or the improvement on his own land, or development of his own 
mine (and in respect to that matter, as it is not before us, we express no opinion) , 
there certainly was none in suggesting that the attitude of the Government upheld 
or countenanced a party going into the business of cutting and carrying off timber 
from Government land, manufacturing it into lumber, and selling it for profit. 

The principles enunciated in that case are, in our opinion, irrecon- 
cilable with the claims of defendant's counsel in this case. 

The defendant contends that the facts shown bj^ the record that he 
endeavored, prior to cutting any timber on the land in question, to 



132 Teller v. United States {113 Fed. Rep., 273). 

ascertain whether the land had been surve3^ed; that while at work 
cutting- the timber he notified one Abbott, a special a^ent of the Gov- 
ernment, that he was so doing; that he received no notice to quit for 
three weeks thereafter, constitute evidence of an honest purpose on 
his part, and should have been submitted to the jurv on that issue. 
The principles hereinbefore discussed are, we think, entirely appli- 
cable to this last contention. The land was unquestionably unsur- 
veyed public land, and if defendant had prosecuted his alleged honest 
purpose far enough he would have ascertained that fact. But whether 
he knew or could have known that it was unsurveyed public land was 
immaterial. All that he was required to know was that it was public 
land, surveyed or unsurveyed, and if he knew that, which unques- 
tionably he did, the fact that he endeavored to find out whether it 
was surveyed or not was quite immaterial, and certainly the tolera- 
tion of a trespass for three weeks, or for any time for that matter, by 
a special agent of the Government, whose duty it was not to tolerate 
it at all, can be of no avail to a trespasser b}^ way of showing that his 
trespassing was done with an honest purpose. 

So far we have treated the several contentions of defendant's counsel 
as if it was competent for him to disprove an actual bad purpose or 
evil intent; in other words, as if it was incumbent on the Government 
to show a bad purpose or evil motive in the mind of the defendant in 
committing the trespass complained of. We have considered the 
excluded testimony on that theory (and even on that theory we have 
been unable to find any substantial error in the rulings of the court), 
but in so doing we have given the defendant the benefit of a position 
which, in our opinion, is unwarranted by the law. 

For the purpose of protecting the public domain from the invasion 
of trespassers. Congress denounced as a crime the cutting of timber 
on public land "with the intent to export and dispose of the same." 
This is the intent that is made criminal by the law and the only intent 
necessary to establish the crime in a given case. 

This intent is fully admitted in the present case. It is undisputed 
that the defendant cut the timber in question for the purpose of ful- 
filling a contract with the receivers of the Union Pacific Railroad 
Company for the delivery of 250,000 ties at Fort Steele. 

It has been held by the Supreme Court in Stone v. United States 
(167 U. S., 188) that it is necessary in prosecutions under the statute 
now in question to prove a criminal intent ^^orat least ?'Ar7?^ (defendant) 
hieiv the tvmher to he the 2yroperty of the United States.'''' 

The elements of the offense charged against the defendant are three 
in number: (1) Cutting timber; (2) from land known to be public land; 
and (3) with intent to export or dispose of the same. 

These three elements concurring, the crime, in our opinion, is com- 
plete and the jury would be fully justified in finding, and indeed it 
would be their duty to find, all the criminal intent required by the act. 



Teller v. Uiiited States {113 Fed. Rep., 273). 133 

The trial court charged the jur}^ that in order to convict thej must 
find that there existed in the mind of the defendant a "willful and 
wrongful purpose to obtain the timber in violation of the law." 
Taken by itself this portion of the charge would have been mislead- 
ing, but taken in connection with other portions of the charge, to the 
effect that if the defendant entered upon public land knowing it was 
such, without having complied with the provisions of the law giving 
him a right to do so, and cut timber therefrom, the jury would be 
authorized therefrom to find the requisite criminal intent, it fairl}' 
stated the law to the jury, and certainh^ as favorable to the defendant 
as he was entitled. 

The admission of the defendant at the trial that he had cut timber 
on 300 acres of unsurveyed Government land to which he had no 
claim or color of title; the evidence of E. M. Johnston, register of the 
land office at Cheyenne, that he had informed the defendant prior to 
his cutting the timber that he could not acquire title to the lands 
because they were not open to entry; the testimony tending to show 
that defendant promised his workmen, when they called his attention 
to the fact that the lands were public lands, to stand between them 
and the Government; and the further important fact that defendant 
had full}^ exhausted all his privileges of purchasing land under the 
stone and timber act, all conduce to show, and, in our opinion, satis- 
factorily show, that defendant well knew the land was public land and 
had all the criminal intent required by section 2-1:61, Revised Statutes, 
and the act of June 3, 1878, to constitute the offense there denounced. 

In our opinion, none of the facts relied upon by him as evidence of 
an innocent intent or purpose were relevant or material to the case. 

The next assignments of error relate to the cutting of timber by 
the defendant on the Montezuma placer claim, and arise on the fol- 
lowing state of facts: One Mullison had been in possession of the 
Montezuma placer claim, working the same for the precious metals 
therein for about thirty years prior to 1898, but he had never applied 
for a patent or taken steps to acquire title from the United States 
prior to that day. 

In October of that year Mullison and the defendant entered into a 
contract by which it was agreed that defendant, in consideration of 
being permitted to cut all the tie timber growing thereon, should pay 
all the expenses, including the Government price of $2. 50 per acre for 
securing a patent b}" Mullison to his claim. Pursuant to this agree- 
ment Mullison, early in Januarj^, 1898, applied for a patent, and 
between that day and June 22, 1898, defendant proceeded to cut and 
did cut over about 300 acres of the claim, and advanced money amount- 
ing to about $2,000 for the payment of the expenses and purchase 
price of the land from the United States. On ffune 22, 1898, the pay- 
ment was made and Mullison secured a receiver's receipt for the same, 
entitling him in due course to a patent for the lands. The contention 



134 Telle)' v. United States {113 Fed. I2ej}., 373). 

of defendant's counsel based on several assignments of error relating 
to the exclusion of evidence and the court's charge, to which particu- 
lar reference need not now be made, is that his cutting timber from 
this land after the application for a patent was made, and before the 
money was paid and a receiver's certificate secured, does not constitute 
an ofi'ense under the statutes of the United States. His proposition is 
that the ultimate payment of the money, and securing the receiver's 
receipt, conferred upon Mullison a title to the land which b}'^ relation 
operated as of the date of the application, and in fact as of the time of 
his original location of the claim, and, therefore, that the cutting 
of timber at the time in question with the consent of Mullison con- 
stituted no violation of the laws of the United States. 

It may be conceded that the payment for the land conferred upon 
Mullison an equitable title to the same, which entitled him to a patent, 
and that he was not required to wait for the actual issue of a patent 
converting the equitable right into a legal title before exercising all 
the incidents of ownership. 

This, we think, is the law as established by the authorities: Wither- 
spoon V. Duncan (4 Wall., 210); Stark v. Starrs (6 Wall., 402, 417); 
Deffeback v. Hawke (115 U. S., 392, 405); Cornelius v. Kessel (128 
U. S., 456, 460^; Hastings, etc., R. R. Co. v. Whitney (132 U. S., 357, 
361); Benson Mining and Smelting Co. v. Alta Mining and Smelting 
Co. (145 U. S., 428); Bardon ik Railroad Co. (145 U. S., 535); Bogan 
V. Mortgage Co. (11 C. C. A., 128; 63 Fed., 192), and the contention 
of the Government in this case, to the contrary, is not well founded. 

The foregoing cases are, however, no authority for the proposition 
that lands cease to be public lands, or that a claimant secures an 
equitable right to a patent, until all the acts are performed and all the 
money is paid by the claimant, which are made by the law prerequi- 
site to securing the legal title. 

Mullison, it appears, had located upon and worked his claim for 
some thirty years prior to 1898, and had thereby under the mining 
laws secured the right of possession to work the claim for precious 
metals as long as he desired to exercise that right, and had also 
acquired the option to apply for and, on certain terms prescribed by 
law, to secure from the United States a patent conferring upon him 
title in fee simple to the lands contained in the claim, with all its inci- 
dental rights, privileges, and immunities. 

It is strenuously argvied b}^ defendant's counsel that the possessor^' 
title acquired by Mullison, b}^ virtue of the location, record, and 
working of his claim for so long a time, segregated the same from 
the public domain and conferred upon him such an equitable right n< 
entitled him or his licensees to all the rights and incidents of absolute 
ownership. We can not agree to any such proposition. 

Three separate rights or titles are recognized ])y the Supreme Cou. I 



Teller v. United Stato^ {113 Fed. Rep., 273). 135 

in ana to public lands. In Benson Mining Co. v. Alta Mining Co., 
supra, the court quotes approvingly from an opinion of the Secretary 
of the Interior, as follows: 

By the laws of the United States, three distinct classes of titles are created, namely 
(1) title ill fee simple; (2) title by possession; (3) the complete equitable title. 

Title by possession is the first one in order of time acquired. Pos- 
session of a mining claim, in accordance with the provisions of the 
statute, bj' well-settled authority, confers the right, subject to certain 
limitations and conditions, upon a locator to work the claim for pre- 
cious metals for all time, if he desires to do so, but confers no right 
to take timber, or otherwise make use of the surface of the claim, 
except so far as it may be reasonably necessary in the legitimate 
operation of mining. 

The next right in order of time is the equitable one, already defined. 

The last one in the sequence is the perfect legal title, in fee simple 
absolute, created bv the issue of the patent by the United States. 

The claimant may be entirely satisfied with his possessory title and 
be neither able nor willing to perform the further acts or pay the 
further consideration requisite to securing the equitable or legal title. 

For reasons of public polic}^ and for the purpose of encouraging the 
mining industry, the United States gratuitously grants the privilege 
to any citizen, or person having declared his intention to become a 
citizen, of locating a claim for mineral lands and working the same 
for precious metals, but it has not seen fit to give away the land con- 
taining the minerals, but, on the contrar}^ has adopted the policy of 
selling the same to the locator, if he desires to purchase, on terms 
fixed by the acts of Congress. 

Mullison's location, record, and working of his claim secured to him 
the possessor}" title only. 

While his location so far segregated and withdrew the land from the 
public domain that no rival claimant could successfully initiate any 
right to it until his location was avoided and his entry was canceled 
(James i\ Germania Iron Co., 107 Fed., 597, 603, and cases there cited; 
Hartman v. Warren, 76 Fed., 157, 160; Kansas Pacific Railway Co. v. 
Dunmeyer, 113 U. S., 629), it gave him nothing but "the right of 
present and exclusive possession" for the purpose of mining. It did 
not divest the legal title of the United States or impair its right to 
protect the land and its product, by either civil or criminal proceed- 
ings, from trespass or waste. While for the purpose of subsequent 
entry and location by private parties the lands which Mullison claimed 
were segregated from the public domain and appropriated to a private 
purpose, they were so segregated for that purpose only, and the legal 
and equitable title to them still remained in the Government, and they 
were still "lands of the United States" within the meaning of section 



136 Teller v. United States {113 Fed. Eej)., 273). 

2461, Revised Statutes, and the act of August 1, 1892 (27 Stat., 348), 
which are under consideration in this case. (Shiver v. United States, 
159 U. S., 191, 191.) The case of Belk v. Meagher (101 U. S., 279, 
283), relied on by defendant's counsel, clearly recognizes the limited 
character of the right conferred upon a locator. The court there says, 
page 283: 

The language of the act is that the locators "shall have the exclusive right of pos- 
session and enjoyment of all the surface included within the lines of their locations 
which is to continue until there shall be a failure to do the requisite amount of work 
within the prescribed time." Congress has seen fit to make the possession of that 
part of the public lands which is valuable for minerals separable from the fee, and 
to provide for the existence of an absolute right to the possession, while the para- 
mount title to the land remains in the United States. 

The two titles recognized by the United States confer totally differ- 
ent rights. The first one confers a right, and it ma}' properly enough 
be said to be vested in the locator, to the possession of the land for the 
purpose of carrying on his mining operations as long as he performs 
the required conditions. This, however, he may at any time abandon 
by ceasing to perform the conditions upon which it depends. 

The second is a complete and absolute title, which ma}^ or may not 
be acquired b}^ the locator, and if acquired is for other and valuable 
considerations moving from him to the United States. This title is 
dependent upon no conditions, l)ut confers all the rights incident to an 
indefeasible estate in fee simple. 

Considerations like the foregoing conclusiveh' show that there is no 
warrant for the contention that the locator's right of possession segre- 
gates the land from the public domain and appropriates it to a private 
purpose in any such way as to withdraw it from the effect of the provi- 
sions of the criminal statutes under which the defendant was convicted. 

After the locator shall have applied for a patent, in the event in the 
exercise of his option he sees fit to do so, and after he shall have fully 
perfected his entry upon the land by the payment of the purchase 
price, and not till then, has the land ceased to be a part of the public 
domain, and not till then has he acquired any vested right to the abso- 
lute title. (Witherspoon v. Duncan, sujjra.) When such an entry is 
made the land is not only withdrawn from the public domain, but the 
entry man has acquired an equitable title, and thereafter and not till 
then the United States holds the legal title in trust for him. 

This brings us to a consideration of the effect to be given to the 
application for a patent made by Mullisou on January 5, 1898, and to 
the perfection of his entry by pa3mient of the purchase price on Jvme 22, 
1898. Between these dates the trespass charged against the defendant 
was committed. 

Counsel strenuously urge that Mullison's actual payment for the land 
on June 22, 1898, and securing the receiver's certificate of such pay- 



Teller ^^ United States {113 Fed. Eel?., 273). 137 

ment, conferred title on him by relation certainly as of January 5, 1898, 
when he applied for the patent. The argument need not here be 
repeated, nor the authorities again referred to, showing that the pay- 
ment for the land and securing the receivers receipt therefor, operated 
to create a perfect equitable title in Mullison. "The equitable title 
accrues immediately upon purchase, for the entry entitles the pur- 
chaser to a patent, and the right to a patent once vested is equivalent 
to a patent issued." (Benson Mining Co. i\ Alta Mining Co., supra.) 
But does this title relate to or become effective as of any day prior to 
the actual paj^ment of the purchase price in any such sense as to entitle 
the applicant for a patent, or anyone acting under or by his authority, 
to enter upon the land in the meantime and appropriate the timber to 
his or their own use? The application for a patent in and of itself 
imposes no obligation upon the applicant to pursue his purpose to 
secure a patent. It is only the first step to that end. He is afterwards 
required by the mining laws to perform certain other prerequisite 
duties, and particularl}" to make paj'ment for the land and secure the 
receiver's receipt therefor. 

At any time prior to the actual payment it is within the power of 
the applicant to abandon his purpose. Can it be possible that Con- 
gress intended to open the door to such depredation and fraud as 
would be feasible on defendant's theory ? According to it, Mullison 
might have made a formal application for a patent, proceeded to sell 
and dispose of the timber growing on the land, impairing its value 
accordingl}", and then, without penalt}^, have abandoned his entry, 
leaving the land wasted and stripped of its timber, which might have 
been its chief value, for the Government to hold without the proba- 
bility of sale. Unless Congress by clear and unambiguous expression 
of its will has left this door open, we will not open it. We not only 
fail to find any such expression of legislative intent, but authority 
and reason alike conduce to the contrary. In U. S. ii. Nelson (5 
Saw3'er, 68) a case much like the present was considered. A locator 
of a placer claim had taken all the steps entitling him to a patent for 
the land except the final payment of the price fixed by law. After- 
wards he cut timber therefrom, not incidental to a bona fide mining 
operation, but for the purpose of selling it as fire wood. The court 
held that this constituted an offense within the meaning of section 
2461, supra, and among other things said: 

The defendant in this case occupies the premises under this law and claims the 
right to cut and remove the timber therefrom as incidental to and in aid of his right 
to mine thereon, but he is not the owner of the land until he pays for it and obtains 
the United States patent. It is a part of the public domain. In the meantime the 
defendant is occupying it under a mere license from the Government which may be 
revoked at any time by the repeal of the act giving it. * * * if the land or the 
greater portion of it is of little or no value as mining ground, but valuable for its 
timber, the defendant might occupy it for a few years until he had stripped the tract 



138 Tea<^^ V. United States {113 Fed. Rep., 273). 

of its timber and worked out the few acres that really contained valuable deposits, 
and then abandon it to the Government. * * * The temptation to locate 160 
acres of timber land as mining ground, and by putting a few dollars' worth of labor 
upon it annually, and thereby be enabled to dispose of the timber upon it at from 
$50 to $100 an acre, is very great, and if the defendant's construction of the law 
is to obtain, there is nothing to prevent its being doiie. * * * The removal of 
timber from a mining claim to be justifiable should proceed pari passu with the 
operation of mining. Whoever wants to go further or faster than this, and for any 
reason appropriate the timber to his own use in advance of his mining operations, 
can only do so safely by paying the purchase price of the land and becoming the 
owner thereof. 

The views so expressed b}^ the district jvidge in that case commend 
themselves to our reason, and, it appears, so commended themselves 
to the reason of the Supreme Court of the United States that that 
court cites it in support of its decision in the case of Shiver v. United 
States {supra). 

The law relating to the acquisition of homesteads is so akin to that 
relating to the acquisition of mineral claims that the principles gov- 
erning the rights of claimants while engaged in perfecting their titles 
are conceded by counsel in their argument to be similar. 

The homestead settler acquires no title until five years after his entry. 
During these 3^ears he must, among other things, reside upon the land 
entered and cultivate the same. The performance of such acts, like 
the final payment by a claimant of mineral land, entitles him to a pat- 
ent. In homestead cases the rule is well settled that the settler may 
cut during those five years only such timber as is reasonably incidental 
to cultivation, and can not, under color of exercising this right, denude 
the land of its timber for the purpose of selling the same and securing 
its purchase price. (Stone v. United States, 167 U. S., 178; Shiver v. 
United States, 159 U. S., 491; United States v. Cook, 19 Wall., 591; 
Conway v. United States, 37 C. C. A., 200; 95 Fed., 615; Grubbs v. 
United States, 44 C. C. A., 513; 105 Fed., 314.) 

In the case of Shiver v. United States, supra., the question turned 
upon what is meant by "land of the United States" within the mean- 
ing of section 2461, Revised Statutes, providing for the punishment of 
persons guilty of cutting timber upon such lands. After making a 
resume of the provisions of the homestead act Mr. Justice Brown, 
speaking for the court, sa3^s: 

It is evident, first, that the land entered continues to be the property of the United 
States for five years following the entry; * * * second, that such property is 
subject to divestiture, upon proof of the continued residence of the settler upon the 
land for five years; third, that meantime such settler has the right to treat the land 
as his OM-n so far, and so far only, as is necessary to carry out the purpose of the 
act. The object of this legislation is to preserve the right of the actual settler, but 
not to open the door to manifest abuses of such right. Obviously the privilege of 
residing on the land for five years would be ineffectual if he had not also the right 
to build himself a house, outbuildings, and fences, and to clear the land for cultiva- 



Teller v. United States {113 Fed. RejJ. , ^7^^. 139 

tion, and to that extent the act Umits and modities the act of 1831, now embraced in 
Revised Statutes, section 2461. It is equally clear that he is bound to act in good 
faith to the Government, and that he has no right to pervert the law to dishonest 
purposes or to make use of the land for profit or speculation. The law contemplates 
the possibility of his abandoning it, but he may not in the meantime ruin its value 
to others who may wish to purchase or enter it. * * * The settler upon a home- 
stead may cut such timber as is necessary to clear the land for cultivation or to build 
him a house, outbuildings, and fences, and perhaps, as indicated in the charge of the 
court below, to exchange such timber for lumber to be devoted to the same purposes, 
but not to sell the same for money except so far as the timber may have been cut for 
the purpose of cultivation. 

The Supreme Court in the last-mentioned case cites a large number 
of cases determined in courts of original jurisdiction wherein views 
were expressed in harmony with those stated by the court, and finally 
concludes that the land of a settler for homestead purposes "remained 
the lands of the United States within the meaning- of section 2461, 
supra," until tne settler had acquired the right to a patent by the per- 
formance of all the conditions necessary under the law to the acquisition 
of such title. 

In our opinion the principles announced in the last-cited case, as 
well as those recognized or announced in other cases above cited, 
control the determination of this case and require us to hold that the 
defendant. Teller, can not justify his cutting of the timber in question, 
under license from Mullison, prior to the payment by him to the 
United States of the purchase price of the land from which the cutting 
was done. 

We have not in the foregoing opinion deemed it necessary to take 
up the assignments of error seriatim, but have adopted the course of 
discussing the principles contended for, believing that in so doing we 
could in a general way dispose of the assignments of error more satis- 
factorily than by considering each separately. 

The conclusions reached dispose of each and all of the assignments 
of error adversely to the defendant and result in an affirmance of the 
judgment. 

The verdict was a general one, and it can not be ascertained from 
the record whether the jury found the defendant guilt}'' of unlawfulh^ 
cutting timber from the unsurveyed lands or from the Montezuma 
placer, or from both, but the conclusion reached demonstrates that 
there was no error on either hypothesis. 

The undisputed facts show that the defendant intentionall}' cut 
growing timber from the lands in question, knowing at the time of so 
doing that they were public lands belonging to the United States, and 
finding no error prejudicial to the defendant, either in the admission 
or rejection of evidence, or in the charge to the jury, the judgment of 
the trial court must be affirmed. 



140 Jarlsdicthn — Railroad Construction — Stttler. 

Stone v. United States. 

Error to the circuit court for the ninth circuit (167 U. S., 178). 

The United States court in the district of Washington has jurisdiction of an action 
brouglit by the United States against a defendant, found there, to recover for 
timber unlawfully cut from lands of the United States in Idaho. 

It is no defense against such action that the defendant was indicted criminally for 
i-utting such timber and was acquitted. 

******* 

The provision in the act of March 3, 1875, chapter 152, that the railroad companies 
therein provided for have "the right to take from the public lands adjacent 
to the line of said road material," etc., means lands in proximity, contiguous to, 
or near the road. 

As between the Government and a settler, the title to public land until the condi- 
tions of the law are fulfilled remains in the United States, but in the meantime 
if the settler is engaged in improving the land as required by law and disposes 
of any surplus timber without intent to defraud the Government, and the pur- 
chaser buys the timber under the belief that there is no intent or purpose to de- 
f.-aud the Government, the sale is lawful and the purchaser is protected. 

The fact that claimants to lands under the homestead and preemption laws after 
occupation for a time abandon the lands is not alone proof that they intended to 
defraud the Government, although in the meantime they have cut and sold the 
timber from the lands during the occupation, but the jury should judge of the 
intent of the parties so acting by all the circumstances surrounding each case, 
and if these circumstances satisfy the jury that claimants of the land were act- 
ing in good faith at the time they sold the timber, and the purchaser had no rea- 
sonable ground to believe otherwise, then such sale would be lawful. 



OPINION OF THE COURT. 

The case is stated in the opinion. 

Mr. Justice Harlan delivered the opinion of the court. 

This action was brought in the District Court of the United States 
for the District of Washington, Eastern Division, to recover the rea- 
sonable value of certain timber and railroad ties manufactured from 
trees alleged to have been unlawfully cut by the defendant Stone from 
certain lands in Idaho, of which, it was averred, the United States 
was the owner. 

The answer put the United States upon proofs of all material alle- 
gations of the complaint. 

But the defendant made two special defenses: 

1. That at a term of the United States district court for the district 
of Idaho, held in April, 1891, the trespasses and wrongs complained 
of were presented by the United States to the grand jury for investi- 
gation, and such proceedings were then and there taken that the grand 
jury returned into court true bills of indictment, in which each and 
all of the wrongs and trespasses complained of herein were included; 
that the defendant was charged thereby with the commission of an 



Stone V. United States {167 U. S., 178). 141 

offense against the statutes, forbidding the cutting or removal of 
timber from the lands of the United States; that on all the charges 
involving the acts of the defendant as set forth in the complaint filed 
herein he was tried and acquitted and discharged therefrom b}^ the 
judgment of that court, and that judgment was duly entered against 
the Government, "the issues therein being the same as are now pre- 
sented in this action, and were each and all determined and adjudged 
in this defendant's behalf," The defendant, therefore, alleged that 
the issues tendered by the plaintiff herein have been heard, tried, 
and adjudged for defendant and against the plaintiff by a court of 
competent jurisdiction, and that such judgment and determination 
precluded the maintenance of this suit. 

2. That between the dates mentioned in the complaint, to wit, 
between the months of August, 1888, and November, 1890, he had 
contracts with various customers for supplies of railroad ties and 
timber for the manufacture of lumber at points along the line of the 
Northern Pacific Railroad Company in the State of Washington, and 
adjacent to the region mentioned in the complaint; that he procured 
his supplies of timber for the purposes aforesaid from lands embraced 
in the grant made by acts of Congress passed to aid in the construction 
of the Northern Pacific Railroad, and by contracts with that company, 
and that at no time did he cut timber on anj^ lands except such as 
belonged to that company; that during said time he purchased from 
other parties, who delivered ties and timber suited for lumber on the 
railroad, both ties and timber not cut by himself, for which he paid 
the market price, and which were either cut from the railroad lands 
or were lawfully cut by the parties who sold and delivered them to 
him; that no part or portion thereof were cut or taken from lands of 
the United States, or were unlawfully cut or taken from any lands; 
that the railroad ties so purchased from other parties, and which 
were not cut by himself from the lands of the railroad company, were 
for the use of and were used in the construction of the Spokane 
and Palouse Railway Company and the Central Washington Railway 
Company's railroads, respective!}', both corporations being organized 
and constructing their roads under and in compliance with grants made 
by the act of Congress of March 3, 1875, authorizing the use of timber, 
etc. , for construction, to be taken from the public lands of the United 
States, and that the taking for such purposes was not unlawful, but 
was by authority of law. 

The defense based on the criminal prosecution in the United States 
district in Idaho was adjudged on d-emurrer to be insufficient in law. 

The United States also brought an action against John H. Stone, 
Edward Noonan, and W. G. Kegler, as partners doing business under 
the name of the Spokane Fuel Companv, to recover the value of 3,515 
cords of wood alleged to have been made from trees unlawfully cut 



142 Stone v. United States {167 U. S., 178). 

from the public lands of the United States in the same State, and to 
have been unlawfully converted and disposed of by the defendants to 
their own use. Noonan answered denying each and every allegation 
of the complaint. Stone answered separately, and alleged that "he 
was indicted upon a charge of cutting timber unlawfully from the 
same lands and premises, upon which the alleged trespasses complained 
of in this action are founded, at the April term, 1891, of the United 
States district court for the district of Idaho; that he was thereafter 
arrested on that indictment and appeared in said court; that such pro- 
ceedings were afterwards had, a judgment was duly given and ren- 
dered in favor of the defendant, and he has been fully acquitted and 
discharged of said offense and of said trespass thereby." That judg- 
ment was pleaded in full discharge of the plaintiff's cause of action 
and in bar of all right of action on account thereof. As further special 
defense Stone denied that the defendants were or had ever been part- 
ners in any business. The defense based upon the indictment, trial, 
and judgment referred to was on demurrer adjudged to be insufficient 
in law. Stone then filed an answer denying each and every allegation 
of the complaint. Noonan denied all the allegations of the complaint. 
Kegler was not served with process and did not appear. 

The two actions were tried before the same jury, having been pre- 
viously consolidated hj order of court. In the first case there was a 
verdict and judgment in favor of the United States against Stone for 
$19,000. In that case the jury, in answer to special questions pro- 
pounded by the court, stated that Stone had received saw logs unlaw- 
fully taken from the lands described in the complaint, and that $15,000 
were awarded as damages on that account. They also stated, in 
response to a special question put by the court, that Stone had received 
railroad ties unlawfully taken from the lands, and that $4,000 were 
awarded on that account. In the case against Stone, Noonan, and 
Kegler, as partners, there was a verdict against Stone for $3,000, but 
the judgment was arrested and the verdict set aside. 

The judgment against Stone for $19,000 was affirmed by the circuit 
court of appeals (29 U. S. App., 32). 

1. It is contended in behalf of Stone that as the lands from which 
the trees were alleged to have been unlawfull}^ cut are in Idaho, the 
action is local to that State, and the district court of the United States 
for the district of Washington was without jurisdiction. Ellenwood 
V. Marietta Chair Co. (158 U. S., 105) is cited as an authority for this 
proposition. But that case proceeded upon the theory that the alle- 
gations of the petition at the time it was tried presented a single 
cause of action, in which the trespass upon the land was the principal 
thing, and the conversion of the property was incidental only, and, 
therefore, that the entire cause of action was local. In the present 
case the petition, it is true, avers that the United States was the owner 



Stone V. United States {167 U. S., 178). 143 

of the lands from which the trees were cut, but the gravamen of the 
action was the conversion of the lumber and the railroad ties manu- 
factured out of such trees, and a judgment was asked, not for the tres- 
pass, but for the value of the personal property so converted by the 
defendant. The description in the petition of the lands and the aver- 
ment of ownership in the United States were intended to show the 
right of the Government to claim the value of the personal property 
manufactured from the trees illegally taken from its lands. Although 
the Government's denial of the ownership of the land made it neces- 
sary for it to prove its ownership, the action in its essential features 
related to personal property, was of a transitory nature, and could be 
brought in any jurisdiction in which the defendant could be found and 
served with process. And a suit could have been brought to recover 
the property wherever it could be found. In Schulenberg v. Harri- 
man (21 Wall., 11, 61), it was said: 

The title to the land remaining in the State, the lumber cut upon the land belonged 
to the State. Whilst the timber was standing it constituted a part of the realty; 
being severed from the soil its character was changed; it became personalty, but its 
title was not affected; it continued as previously the property of the owner of the 
land, and could be pursued wherever it was carried. All the remedies were open to 
the owner which the law affords in other cases of the wrongful removal or conversion 
of personal property. 

If a suit like this can not be maintained, then persons depredating 
on the public lands may escape civil liability by simply removing from 
the State in which the depredation occurred; whereby the Govern- 
ment would be compelled to rely altogether upon a criminal prosecu- 
tion in which it could not succeed except by proving the guilt of the 

defendant beyond all reasonable doubt. 

* ****** 

4. By the act of March 3, 1875 (18 Stat., 482, chap. 162), Congress 
granted the right of way through the public lands of the United States 
to any railroad company duly organized under the laws of any Terri- 
tory, except in the District of Columbia, or by the Congress of the 
United States, which shall have filed with the Secretary of the Interior 
a copy of its articles of incorporation and due proofs of its organiza- 
tion under the same, to the extent of 100 feet on each side of the 
central line of the road; "also the right to take from the public lands 
adjacent to the line of said road, material, earth, stone, and timber 
necessary for the construction of said railroad." 

At the trial the defendant offered as evidence the appointment of 
the plaintiff in error, John H. Stone, as agent of the Central Wash- 
ington Railroad Company and of the Spokane and Palouse Railway 
Company, claiming that said corporations, having been organized 
under the laws of the Territory of Washington, and having filed their 
articles of incorporation and proofs of organization with the Depart- 
ment of the Interior, which had approved the same, were authorized 



144 Stone v. United States {167 U. S., 178). 

by the laws of the United States to take the timber included in this 
action, and such taking bj" them through their agent was not unlawful, 
the proof showing "'that the ties which are sued for in this action 
were used hy the said railroad companies in the construction of their 
said roads." This evidence was excluded and its exclusion is assigned 
for error. It appears from the record, as stated in the opinion of the 
circuit court of appeals, that no timber fit for ties was found along the 
line of either of these roads; that both of them penetrated a barren 
region almost entirelj' destitute of timber, and that the timber was cut 
from lands along the line of the Northern Pacific Railroad about 50 
miles distant from the eastern end of the other roads, which was the 
nearest point where available timber could be found. 

The trial court in its charge, thus interpreted the above act of 1875: 

The act of Congress under which this claim is made does not undertake to provide 
the materials necessary for the building of railroads. It does not provide that if 
there is not any timber convenient, or within a convenient distance to the building 
and construction of a new railroad, that the railroad company has a right to require 
the United States to provide them with material, or go upon distant lands and procure 
the material that they require. That is not the scope of the law, and so I have 
decided that adjacent lands means lands in proximity, contiguous to, or near to the 
road, and that lands so far distant from the railroad and mentioned as lands in 
Kootenai County, Idaho, where it is claimed that railroad ties were cut, were not 
adjacent lands within the meaning of the law. That takes the whole question and 
the whole subject-matter of that claim from your consideration, and releases you 
from any consideration in regard to it. 

AVe concur with the circuit court of appeals in adjudging this to be 
a sound interpretation of the act of 1875. It is substantially the view 
expressed in Denver and Rio Grande Railroad v. United States (34 
Fed. Rep., 838, 841), in which Mr. Justice Brewer said: 

I certainly do not agree with the idea, which seems to be expressed elsewhere, 
that the proximity of the land is immaterial, or that Congress intended to grant 
anything like a general right to take timber from public land where it was most 
convenient. The grant was liipited to adjacent lands, and I do not appreciate the 
logic which concludes that if there be no timber on adjacent lands the grant reaches 
out and justifies the taking of timber from distant lands — lands 50 or 100 miles away. 

Under this interpretation of the act of Congress, and under the 
facts of this case, it is clear that the timber was not taken from lands 
which, within the true meaning of that act, were adjacent to either of 
the roads in the construction of which it was used. 

5. One of the principal matters contested at the trial was whether 
the lands were public lands of the United States in any sense that 
would entitle the Government to claim that it owned the timber taken 
from them. The defendant introduced evidence to show that certain 
individuals had acquired the lands under the laws of the United States, 
and were in the exercise of their rights when cutting timber from 
them. 

Upon this general subject the court instructed the jury, in sub- 



Stone V. United States {167 U. S., 17 S). 145 

stance, that the United States was the primary source of title to all of 
the lands in the State of Idaho, and where individuals have acquired 
ownership they have done so by grant or conveyance from the Gov- 
ernment; that in a case where there was no evidence of transfer from 
the United States of title it is to be taken that the title is still in the 
United States; that as to all lands in which the title is in the Govern- 
ment, the timber and trees standing- and growing on them are part of 
the land, the title of the United States to the trees being the same as 
its title to the soil; that when trees on such lands are cut down With- 
out authority of law the right of property in the timber after it is 
severed from the realty still remains in the Government, and if 
anj^'one without license from the Government or without authority of 
law takes the timber from the land he commits a trespass against the 
GoA'ernment; that no person can acquire title to the timber so cut by 
buying it from an individual, unless it appears that that individual in 
cutting and removing it from the lands had license or lawful authority 
to do so; that under the laws in force during the time referred to in 
the pleadings and evidence, any person desiring an}^ part of the lands 
known as public lands must prove that it was for his own exclusive 
use and benefit and for the purpose of residing upon and cultivating 
it, thus carrying into eflPect the policy of the Government in giving 
public lands to the people who need them and would cultivate and use 
them, so as to cause the greatest benefit to the country; that any 
settler going upon a tract of land with that intention goes by invita- 
tion of the Government, and with the authority to improve the land 
and make it fit for use; that he is authorized to cut down the timber 
which he finds standing there (if it encumbers the ground) so far as 
was necessaiy to do so in order to make the land fit for cultivation; 
that any timber that he does so cut down in good faith and for the 
purpose of improving the land, he being a bona fide settler intending 
to acquire title in accordance with the laws, is not the property of the 
United States, but becomes his property after being so cut down, and 
that he ma}^ burn it up or he may sell it for money, and if he sells it 
under the conditions named the man who buys it from him gets a 
good title and is not required to pay the United States for it after- 
wards; that the converse of that proposition was true, and where a 
man cuts timber off the public lands, unless he is a bona fide settler 
intending to acquire title to the lands by obedience to the laws of the 
United States, he does so unlawfully, and does not make himself the 
owner of the timber b}- cutting it; and that even a settler who takes 
up a claim on public lands, intending to perfect his right to it, has no 
right until he has perfected his claim to cut the timber, except so far 
as it is necessary and reasonable to prepare so much of the lands for 
cultivation as he intends to cultivate. 
21150—03 10 



146 Stone V. United States {167 U. S., 178). 

The court proceeded in its charge: 

A man of limited means who goes upon a claim and is able during the first yeaj- to 
cultivate only a few acres is only authorized to cut the timber off the few acres that 
he intends to cultivate and is able to cultivate. If he cuts down the timber off 40 
acres it should be in pursuance to a definite plan that the plow shall follow the ax, 
and that the entire 40 acres shall be put to use for the purpose of cultivation, or in 
such manner as a farmer makes use of land that is tillable land. The balance of the 
timber on the 160 acres, if it is a timbered claim, a claim covered by timber, should 
remain as a preserve, a timber preserve, for the future benefit of the land, and. should 
be removed only so fast as the settler finds it necessary to remove it in order to put 
in cultivation the lands he means to cultivate and intends to cultivate in good faith. 
But a man whose primary purpose is to cut the timber on a piece of land is no more 
authorized to go and cut that timber by reason of his having filed in the land office 
a declaration of his intention to take the land under the preemption law than if he 
goes and cuts it without fifing any declaration. Unless the declaration is an honest 
declaration, and is supported by compliance with the requirements of the law, by 
making a home upon the land, actually living upon it and actually proceeding in the 
regular way by regtilar process of improving the land and putting it in cultivation, 
and until he has perfected his right by full compliance with the law, he has no right 
to cut down and sell the timber on other portions of the land which he is not intend- 
ing to immediately put into cultivation. As between the Government and the set- 
tler the title to the land until the conditions of the law are fulfilled remains in the 
United States, but in the meantime if the settler is engaged in improving the land as 
required by law and disposes of any surplus timber without intent to defraud the 
Government, and the purchaser buys the timber under the belief that there is no 
intent or purpose to defraud the Government, the sale is lawful and the purchaser is 
protected. The fact that claimants to lands under the homestead and preemption 
laws after occupation for a time abandon the lands is not alone proof that they 
intended to defraud the Government, although in the meantime they have cut and 
sold the timber from the lands during the occupation, but the jury should judge of 
the intent of the parties so acting by all the circumstances surrounding each case, and 
if these circumstances satisfy the jury that claimants of the land were acting in good 
faith at the time they sold the timber, and the purchaser had no reasonable ground 
to believe otherwise, then such sale would be lawful. 

It is not, in our judgment, necessary to add anj^thing to this clear 
and satisfactory statement of the law as applicable to the matters 
referred to by the trial court. They are in accord with the A^ews of 
this court as expressed in Shiver v. United States (159 U. S., 491, 497, 
498). See also United States v. Cook (19 Wall., 591). The objections 
made at the trial (and repeated here) to what was said to the jury on 
this part of the case were not well taken. They could not be sustained 
without encouraging depredations upon the public lands under the 
guise of establishing settlements upon them in accordance with the 
liberal policy of the Government. 

* * * * * * * 

Having noticed all the matters in the record that we deem important, 
and perceiving no error of law to the prejudice of the substantial 
rights of the defendant, the judgment is affirmed. 



Timher on Homesteads. 147 

CIRCULAR RELATIVE TO TIMBER ON HOMESTEAD ENTRIES. 

Department of the Interior, 

General, Land Office, 

Washington., D. C, Deceniber 15, 1885. 
To Registers and Receivers United States Land Offices, and Sjyecial 

Agents General Land Office. 

Gentlemen: The following- rules and regulations are hereby pre- 
scribed by the Secretary of the Interior for the protection of the timber 
growing or being upon public lands covered by homestead or preemp- 
tion entries; and paragraphs 8 to 10, circular of June 1, 1883, and 
circular of December 15, 1883, are hereby revoked. 

1. Homestead or preemption claimants who have made bona fide 
settlements upon public land, and who are living upon, cultivating, and 
improving the same in accordance with law and the rules and regula- 
tions of this Department,, with the intention of acquiring title thereto, 
are permitted to cut and remove, or cause to be cut and removed, from 
the portion thereof to be cleared for cultivation, so much timber as is 
actually necesssar}' for that purpose or for buildings, fences, and 
other improvements on the land entered. 

2. In clearing for cultivation, should there be a surplus of timber 
over what is needed for the purposes above specified, the entryman 
may sell or dispose of such surplus; but it is not allowable to denude 
the land of its timber for the purpose of sale or speculation before the 
title has been conveyed to him by patent. 

******* 

Respectfully, Wm. A. J. Sparks, 

Commissioner. 
Approved December 15, 1885. 

L. Q. C. Lamak, Secretary. 



RIGHT OF GOVERNMENT TO TIMBER CUT ON HOMESTEADS. 

Department of the Interior, 

General Land Office, 

Washington, D. C, May 16, 1896. 
Sir: Your letter of April 30, 1896, is received, in which you ask, 
first, if a homestead entryman can, prior to making final proof, con- 
tract for the cutting and hauling awav, for a consideration, of the 
cedar timber on his claim, the same to be cut for the purpose of clear- 
ing the land for cultivation, and manufactured into shingle bolts. 
And, second, if the entryman, "to swindle the contractor," should, 
"after it is all cut and ready to be hauled," refuse to let the con- 
tractor remove it "under the pretext" that final proof had not been 



148 Timber on Homesteads — Bights of Settlers — Indian Homesteads. 

made, ''could the contractor have the right to take the bolts in pay- 
ment for his labor," etc. ? 

You are informed that a bona fide entryman may cut or contract for 
the catting- of such timber as he wishes to have cleared in the ordinary 
preparation of his claim for farm purposes. The timber so cut he can 
sell or dispose of as he may see fit. (See inclosed copy of circular 
dated December 15, 1885, relative to timber cutting on lands embraced 
in homestead entries.) 

Until patent for the claim issues to the entryman, the timber cut 
thereon is not his property exclusively. The Government has rever- 
sionary rights in the lands, and, in the opinion of this office, the tim- 
ber cut thereon ma}^ not be appropriated or levied upon in satisfaction 
for any claim which another may hold against the entryman. 

The contractor can not, therefore, appropriate the timber or bolts to 
which you refer in satisfaction for his claim for labor performed 
thereon. He has his remed}^ in the local courts, and can there redress 
his grievance growing out of violation of contract. 
Very respectfully, 

S. W. Lamoreux, 

ConwiissioneT. 

Mr. Joseph ]N. Carlson, 

Silver Lake., Coiolitz County^ Wash. 



PUBLIC-TIMBER PRIVILEGES OF SETTLERS ON UNSURVEYED LANDS. 

A bona fide settler upon unsurveyed public land who intends to 
acquire title to the land under the homestead laws so soon as he is 
allowed to do so after survey, and who, in good faith, is complying 
with the rules and regulations relative to residence, cultivation, and 
improvements, is permitted the same privileges with regard to the 
cutting of timber upon his claim as are allowed to the bona fide home- 
steader, and is subject to the same restrictions. 

TIMBER ON INDIAN HOMESTEADS. 

The rules and regulations governing the use of timber on lands cov- 
ered by Indian homesteads are the same as those set forth in circular 
of December 15, 1885, quoted on page 147, with the exception that the 
restrictions respecting the use of timber remain in force for a period of 
twenty-five years subsequent to the issuing of trust patent, inasmuch 
as the title to the land (and, hence, to the standing timber as a part of 
the realty) acquired under such patent remains inalienable until the 
expiration of that period, or longer, when the United States is dis- 
charged of its trust. 



Timber on Indian Allotments mid Indian Reservations. 1-19 

TIMBER ON INDIAN ALLOTMENTS AND INDIAN RESERVATIONS. 

(19 Op., 232.) 

Department of Justice, 

Washington, January 26, 1889. 
Sir: By j^our letter of the 21st of January, 1889, you ask — 

1. Whether an allottee under the act of February 8, 1887 (24 Stat., 388), possesses 
the right to cut and sell merchantable timber, whether pine or hard wood, standing 
upon the lands allotted to him, and held under the trust patent by which the title is 
reserved for twenty-five years or longer to the United States. 

2. If such allottees possess the right of sale to any extent, is the Department 
authorized to exert any control over the disposition of the property, except when 
the land still remains within an Indian reservation within its jurisdiction under 
the statute? 

The Indians, when organized as tribes under the former policy of the 
Government, have been treated as domestic dependent nations under 
the guardianship of the United States. That their condition would be 
made better if, instead of their separate national organization, with 
the nomadic and improvident habits incident to it, they were severally 
qualitied, as speedily as possible, for self-reliant citizenship in the several 
States and Territories and endowed with political rights, is shown to be 
the conclusion reached by Congress, which inspired the passage of the 
act to which you refer. The act is intended to change the wandering, 
improvident, and semicivilized hunter to the domestic, industrious, and 
enlightened citizen. The first step adopted to promote this end is to 
give to each Indian a home, with a sense of "ownership. The act con- 
templates that these homes shall, in the first instance, be agricultural. 
The first industries are to be farming and grazing, as shown bv the first 
section of the act, for the land to l)e allotted is to be such as is "advan- 
tageous for agricultural and grazing purposes." In this contemplated 
new mode of life the guardianship which heretofore has been exercised 
over the tribe is to be transferred to the individual allottees provided for 
in the act. The separate manhood of each Indian is to be recognized, 
but still subject for a time to the care and supervision of the Govern- 
ment as trustee or guardian. The real estate falling to each allottee is 
not intended to be used during the period of the guardianship for 
speculative purposes, but is so conditioned that in their period of ward- 
ship and tutelage the Indians shall not be subject to the danger of 
entering into an unequal competition with the whites in the field of 
trafiic and general business outside of agriculture and grazing. The 
fifth section of the act provides for two different patents to be given to 
each allottee for the same land. The first is to be — 

Of the legal effect, and declare that the United States does and will hold the land 
thus allotted for the period of twenty-five years in trust for the sole use and benefit 
of the Indian to whom such allotment shall have been made, or, in case of his decease, 
of his heirs, according to the laws oi the State or Territory where such patent is 
located. 



150 Timher on Indian Allotments and Indian Reservations. 

The .second is — 

That Ht'ter \\\v. expiration of said period the United States will convey the same by 
patent to said Indian or his heirs as aforesaid in fee, discharged of said trust and 
free of all charge or encumbrance whatsoever. 

Prior to the issuing- of the second patent the United States is to act 
as trustee of the lands. This relation as to the lands is substituted for 
the guardianship heretofore exercised over the tribe. For twenty -five 
years or longer the obligation exists to see that the intent of the law 
shall be faithfully carried out and no unlawful waste committed, either 
by the cestui qui trust or anyone else. During that period the land is 
intended to be used for agricultural and grazing purposes. AVhatever 
timber may be necessarily cut or used for the promotion of these pur- 
poses the trustee should permit. To sell the timber growing on the land, 
or to cut it for sale for conmiercial purposes, except such as may be cut 
in clearing the land or for improvements to be erected thereon, would be 
inconsistent with the obligation of the trustee to preserve and protect 
the trust. And the ruling in United States v. Cook (19 Wall., 591) 
would seeni to meet this question. The opinion rendered by me July 
21, 1885, to the Secretary of the Interior on the question of leasing 
Indian lands for grazing iniTposes in its logic reaches this proposition. 

Your first inquiry is therefore answered, that the allottee does not 
possess the right to cut and sell merchantable timber, except such as 
it may be necessary to cut in clearing the land for agricultural or 
grazing purposes or to erect suitable buildings thereon. 

To your second inquiry I reply that by virtue of the legal title remain- 
ing in the Government, and the trust relation assumed by it until the 
second patent is granted, it is the duty of the Department to prevent 
the cutting of tim ber except for the purposes above indicated, whether 
the land is or is not within an Indian reservation. 

Very respectfully, 

A. H. Garland, 

Attorney- General. 
The Secretary of the Interior. 

See "Timber unlawfully cut on Indian lands" (19 Op., 710), cited 
on page 60. 

See also United States y. Cook (19 Wall., 591), cited on page 62. 



LANDS VALUABLE CHLEFLY FOR TIMBER NOT SUBJECT TO INDIAN 

ALLOTMENT. 

Department of the Interior, 

Washi?igton-, December 30, 1895. 
Sir: I transmit herewith copy of a communication of the 24th instant 
from the Commissioner of Indian Affairs, and accompanying applica- 



Burned Timber on Homesteads in Wisconsin^ Minnesota^ Etc. 151 

tions, made by Louis Mishler, a Chippewa Indian, for allotments of 
lands for himself and his four minor children. 

As the papers show that the lands in question are more valuable for 
timber than either agricultural or grazing puposes, and therefore not 
subject to allotment, said applications are rejected, and yow will cancel 
the same and take such other steps in the premises as ma}^ be proper. 

Please notify the Commissioner of Indian Affairs of the action taken 
by 3^our office. 

Very respectfully, Hoke Smith, 

Secretary. 

Commissioner of the General Land Office. 



BURNED TIMBER ON HOMESTEAD ENTRIES IN WISCONSIN, MINNE- 
SOTA, AND MICHIGAN. 

[Act of January 19, 1895; 28 Stat., G34.] 

AN ACT for the relief of homestead settlers in Wisconsin, Minnesota, and Michigan. 

Whereas during the summer and autumn of eighteen hundred and 
ninety-four extensive forest fires prevailed in northern Wisconsin, 
Minnesota, and Michigan, resulting in the death of many homesteaders 
and their families, the destruction of their property and effects, and 
of much of the green timber growing upon them, which homesteads 
are valuable chiefly for the timber standing and growing on them; and 

Whereas under existing law homesteaders are not allowed to cut or 
sell green or burned timber, except for the purpose of clearing and 
improving, and all burned timber not cut within a short period will 
become worthless and a loss to the settler and the Government: There- 
fore, 

Be it enacted hy tlie Senate and House of Representatives of the United 
States of America m Congress assembled., That all such persons actually 
occupying homesteads in said States of Wisconsin, Minnesota, and 
Michigan, at the time of such fires, upon claims under the laws of the 
United States, on lands of the United States, whose property and 
buildings were destroyed by such fires, and the heirs of all such per- 
sons who perished by such fires, and all persons who by reason of such 
fires and loss of property were obliged to leave their homesteads, are 
hereby granted two j'ears' additional time in which to make final proof. 
And temporary absence for any period within two years from the date 
of this act shall be deemed constructive possession and residence, but 
shall not be deducted from the time required to make final proof. 

Sec. 2. That all persons whose property was destroyed by such fires, 
and the heirs of all persons who were actual occupants of the home- 
steads at the time of the fire, and who lost their lives in and by that 
fire, may, by proving such actual occupancy at the date of such fires, 



152 Burned Timber on Hoinesteads in Wisconsin, Minnesota, Etc. 

make proof showing- compliance with the law up to the date of the fire, 
and shall make payment at the minimum price under existing statutes, 
in the same manner as if such claimants were alive, and upon receipt 
of such proof of loss of property by such fires, or death of the claim- 
ant, heirs surviving, and upon payment as aforesaid, a patent shall be 
issued to such claimant, or his or her heirs. 

Sec, 3. That the claimant upon an}^ homestead, who by reason of not 
having lived thereon the necessary length of time to enable him to com- 
mute under section twent}' -three hundred and one of the Revised Stat- 
utes as amended by the act of March third, eighteen hundred and 
ninety-one, his heirs, executor, administrator, or guardian of his minor 
heirs, may, when the quantity of timber destroyed upon his or her 
homestead shall not exceed seventy-five thousand feet of merchantable 
green timber, file an estimate in the land ofiice where such homestead 
was entered with such reasonable proofs as the Commissioner of Public 
Lands may prescribe, as to the quantity of timber destroyed upon any 
sectional subdivision, and thereupon the register and receiver may, 
under the direction of the Commissioner of Public Lands, issue a license 
or permit to cut the burned timber on any homestead or sectional frac- 
tion thereof, upon payment of the sum of one dollar and twenty- 
five cents per acre for such sectional subdivision, and the Government 
shall issue a patent for the same to the claimant or his or her heirs. 

CIRCULAR. 

(20 L. D., 98.) 

Department of the Interior, 

General Land Office, 
Washington, D. C. , Fehruary 2, 1895. 
Registers and Receivers, United States district land offices, in Wisconsin^ 
Minnesota, and Michigan. 
Gentlemen: Your attention is called to the act of Congress approved 
January 19, 1895, entitled "An act for the relief of homestead settlers 
in Wisconsin, Minnesota, and Michigan," a copy of which is hereto 
attached. 

The first section provides for an extension of time of two years within 
which to make final proof, and excuses temporarj^ absence for any 
period within two years from the date of the act in all cases where any 
homestead settler, in your respective districts, was compelled to leave 
the land settled upon by him because of the prevailing forest fires of 
the summer and autumn of 1891, and by reason of the destruction of 
buildings or other propert}^ by such fires. The same relief is extended 
to the heirs of any settler who perished b}^ such fires. Any settler 
desiring to receive the benefit of these provisions will be required to 
file in the district land office having jurisdiction over the land embraced 



Burned Tiiiiber on Homesteads in Wiscwisin, Minnesota, Etc. 153 

in his or tier claim an affidavit corroborated by two parties setting forth 
the number of the entry, if one has been made, and the description of 
the land; the date of settlement upon the land; the amount and char- 
acter of the improvements placed thereon; the character and extent of 
the damage to the settler's property caused b}^ the fire; the date when 
the same occurred; whether or not the party was thereby obliged to 
leave the claim, and such other facts as may be relied upon as bring- 
ing the party within the scope of the act. Where a homestead settler 
perished bv such tires, the heirs (i. e., the successors to the right under 
the homestead law, if they desire to receive the benefit of the provi- 
sions of said section), or one of them, will be required to furnish evi- 
dence consisting of the affidavit of the respective claimants, or, if a 
minor, of his or her guardian, corroborated by two witnesses, setting 
forth the number of the entry, if one has been made, and the descrip- 
tion of the land; the date of the settlement under which they claim; 
the character and value of the improvements, and the circumstances 
attending the death of the settler. The affidavits of the claimant and 
his corroborating witnesses may be made before an}^ officer authorized 
to administer oaths using a seal. 

Upon receipt of the required affidavits you will forward the same 
to this office, with your joint recommendation in regard to the case. 
Should the evidence be found satisfactory ^ow. will be so advised, 
whereupon you will make such notes upon your records for your 
future guidance as will indicate that the parties are entitled to the 
benefits of the provisions of the first section of the act, and in these 
cases 3'ou will not issue the usual notice of the expiration of time 
within which to make proof until ten years from the date of the entry, 
and no contest for abandonment or noncompliance with the law will 
be allowed against any of the entries until after the expiration of two 
years from the date of the act. Entrymen temporarily absent for any 
time within two years from the date of the act will not be required to 
show any additional period of residence when they n\2ik& final proof, 
because of such absence, as the act explicitly directs that such absence 
shall be deemed constructive residence. 

Parties coming under the act whose claims rest upon settlement alone 
are not relieved from the necessity of making their original homestead 
entries as heretofore required by the law and regulations in order to 
protect their settlement rights. 

The second section provides that homestead settlers whose property 
was destroj^ed l)y such forest fires, or in case the settler perished by 
the fire, then his or her heirs, or, in other words, the successors to his 
or her homestead right, as defined in section 2291, Revised Statutes, 
nia}^, upon satisfactory proof of compliance with the law upon the part 
of the settler, to the date of the fire, and, upon payment of the mini- 
mum price under existing statutes, receive a patent for the land 



154 Burned Timber on Homesteads in Wisconsin, Minnesota, Etc. 

embraced in the claim of such settler. The procediii-e in such cases, 
where the original entry has been made, will be the same as is now 
required in making homestead proof, except that compliance with the 
law need be shown only to the date of the fire, and, in addition, proof 
will be required as to the date of the forest fire and the extent of the 
damage done to the claimant's property thereby, or, where the settler 
has perished by the fire, proof as to the time and manner of his death. 
The payment required to be made for the land is the ""minimum price 
under existing statutes," which in ordinary commutation of homestead 
entries under section 2301, Revised Statutes, is $1.25 per acre, except 
where the lands are within the limits of railroad land grants and thereby 
enhanced in price to $2.60 per acre, and in other cases such amount as 
is required by any special laws which maj^ govern the disposal of the 
specific tracts of land. 

You will make no change in your method of reporting these entries, 
but will be governed in each case by the instructions heretofore issued, 
should there be any entries embracing land of a special character. 

In all cases where parties intend to avail themselves of the benefit 
of the said second section under claims resting upon settlement alone 
at the time of the fire, they will be required, when they apply to make 
the original entry, if such application is not made within three months 
of the date of the settlement, to file affidavits explaining why such entry 
had not been made sooner, and when parties whose entries have been 
made since the date of the fire submit proof, as herein required for 
the purpose of perfecting title to their claims, under the provisions of 
the said section, you will forward the proof submitted to this office for 
consideration and withhold the cash certificate until advised that such 
proof is satisfactory to this office. 

Section 3 provides for cases in which the forest fires only partiall}'^ 
burned the timber on the homestead, and the settler may desire to pur- 
chase only a portion thereof, retaining the remamder to be perfected 
under the general provisions of the homestead laws. 

In such cases, and when the quantity of timber burned does not 
exceed 75,000 feet of merchantable green timber, the entryman may 
file with the register and receiver of the district in which his claim lies 
a sworn statement setting forth the fact that the timber on his claim 
was destroved or injured by the forest fires during the summer and 
autumn of 1891, giving a description of his entr3\ the date and number 
thereof, and a description of each of the smallest legal subdivisions of 
his claim upon which the green timber has been injured or destro^'ed 
by said fires, together with an estimate of the amount of such timber 
so injured or destroyed upon each of said smallest legal subdivisions. 
Also that he has complied with the requirements of the homestead law 
up to date. This statement must be corroborated by two witnesses 



Stm'm -felled Timber in Florida. 155 

who have actual knowledge of the conditions existing on the claim. 
The entryman must designate which of the legal subdivisions of his 
claim on which the timber was burned he desires to purchase under 
this act, and with his application to purchase and sworn statement 
above required he must tender the necessar}- amount of money to 
complete the purchase at the minimum price per acre. 

Upon the presentation of the above-required application and sworn 
statement, together with the purchase money, if the same be found 
satisfactory to the register and receiver, they shall thereupon issue the 
ordinary cash entry certificate and receipt, giving them current num- 
bers in the regular cash series. On the margin of the certificate, 
receipt, and duplicate receipt there shall be indorsed in red ink: 
"Burned timber entry, act of January 19, 1895." 

On the back of the duplicate receipt there shall be indorsed the fol- 
lowing license or permit to cut the burned timber: 

The within-named entryman having complied \v'ith the regulations prescribed 
under the act of January 19, 1895, entitled "An act for the relief of homestead set- 
tlers in Wisconsin, Minnesota, and Michigan," is hereby permitted to cut and dis- 
pose of the burned timber on that portion of his homestead entry described in this 
duplicate receipt. 

Date . , Register. 

, Receiver. 

Ver}^ respectfully, 

S. W. Lamoreux, 

Omimissioner. 

Approved: 

Hoke Smith, Secretary. 

TIMBER FELLED BY STORM ON CERTAIN HOMESTEAD ENTRIES IN 

FLORIDA. 

lAct of Febraary 26, 1897; 29 Stat., 599.] 

AN ACT Concerning certain homestead lands in Florida. 

Se it enacted^ hy the Senate and House of Representatives of the United 
States of Ajne7'ica in Congress assemhled^ That all persons actually 
occupying homesteads in good faith in any of the following-named 
counties in said State of Florida, to wit, Alachua, Lafaj^ette, Lev}", 
Suwannee, Bradford, Baker, and Columbia, at the time of the storm 
on or about September twenty-ninth, eighteen hundred and ninety-six, 
are hereby granted the right to sell or otherwise dispose of the fallen 
timber on their homestead entries felled by said storm, and to devote 
the proceeds of such sale or barter to the improvement of their home- 
steads or support of themselves or their families. 



156 Thiiher on School Lands. 

TIMBER ON SCHOOL LANDS. 

[11 Copp's Land-Owner, 134.] 

School Sections — Public Lands — Trespass. 

School sections in the Territories are public lands, though reserved, and are 
under the control of the United States. Suits for damages against trespassers 
thereon may be brought in the local courts by United States officials. 

SecretaTy Schurz to Hon. John Eaton^ Commissioner of Education., 

Augtist 18, 1879. 

I have received your letter of the 5th instant, inclosing a letter from 
Hon. W. H. Beadle, superintendent of public instruction for Dakota 
Territory, dated Mapleton, Dak., the 16th ultimo, in relation to dep- 
redations being committed upon sections 10 and 36 in said Territory, 
by cutting and removing timber therefrom, and also b}^ cultivating 
the same for crops as private property. 

Mr. Beadle desires to be informed whether sections 16 and 36 in 
each township of surve3"ed lands in said Territory are public lands, or 
whether they are "so under Territorial jurisdiction as to enable us to 
bring actions in favor of our public-school fund." Section 14: of an 
act entitled "An act to provide a temporary government for the 
Territory of Dakota and to create the office of surveyor-general 
therein" reads as follows: 

And be it further enacted that when the land in said Territory shall be surveyed, 
under the direction of the Government of the United States, preparatory to bringing 
the same into market, sections numbered sixteen and thirty-six in each township in 
said Territory shall be, and the same are hereby, reserved for the purpose of 
being applied to schools in the States hereafter to be erected out of the same. (12 
Stat, 239.) 

The lands are public lands, although reserved for a particular pur- 
pose, and all trespass committed upon them renders the parties guilty 
of such trespass liable to prosecution under the laws of the United 
States. 

The penalties, however, collected for trespass would not inure to 
any school fund of the Territory. 

The United States has not granted the title to such lands, but has 
reserved them in order that at some future time, when a State shall be 
erected out of such Territor}^, the same may be granted to such State. 

In relation to the right of the United States to prosecute for tres- 
passes, I think there can be no question. 

Section 2461, Revised Statutes, provides specificall}^ the punishment 
for cutting and removing timber from the public lands; and while I 
am not aware of any statute which provides for a rule of damages for 
using and cultivating lands of the United States which can not, under 
law, be sold, still I am of the opinion that the United States has the 
right to recover mesne profits for the use of said land. 



Timher on School Lands — Boxing Trees for Turpentine. 157 

In the case of Cotton v. United States (11 How., 239), the Supreme 
Court says: 

Although as a sovereign the United States may not be sued, yet as a corporation 
or body poHtic they may bring suits to enforce their contracts and protect their 
property in the State court or in their own tribunals administering the same laws. 
As an owner of property in almost every State of the Union, they have the same 
right to have it protected by the local laws that other persons have. 

In the case of the United States v. Gear (3 How., 120) it was held 
that the United States had the right to maintain an action of trespass 
for taking ore from load mines. On the same principle I think the 
Government would be entitled to recover for any other beneficial use 
to which the public lands might be put. You may, therefore, advise 
Mr. Beadle that if he will furnish this Department with information as 
to the cutting and removing of timber from sections 16 and 36, or an}' 
other public lands in the Territory of Dakota, giving a description of 
the tract trespassed upon, and time when trespass was committed, the 
same will receive prompt attention. You may also advise him that if 
he will furnish to this Department like information of persons who are 
cultivating and using such sections, that proper action will be taken 
thereon. 

BOXING TREES ON PUBLIC LANDS FOR TURPENTINE PURPOSES. 

All boxing and chipping of trees for turpentine purposes on public 
lands, whether vacant or covered by unperfected homestead entries, is 
unlawful. 

The use of trees for such purposes on lands covered b}" unperfected 
homestead entries can not be considered as constituting such "cultiva- 
tion" as is contemplated in the second section of the act of Ma}' 20, 
1862, which has clearly in view the tilling or fertilizing of the soil. 

The decisions rendered in the cases of James F. Bailey, J. C. Cal- 
houn, and E. S. Taylor, tried at the April (1888) term of the circuit 
court, eastern district of Louisiana, established the right of the Gov- 
ernment, in cases of turpentine trespass on public lands, to bring crim- 
inal proceedings for the stealing and retaining of personal property of 
the United States, to wit, crude gum, etc., under section 5466 of the 
United States Revised Statutes, and 18 Stat., 479. 

The further right to sue for the recovery of damages ia cases of this 
nature is established by the decision rendered in the following case: 

United States v. Taylor. 

Circuit court, southern district of Alabama (35 Fed. Rep., 484). 

Public Lands — Trespass — Right op Government to Sue — Possession — Home- 
stead. 

Possession by a homestead claimant, and a receiver's receipt issued since bring- 
ing the action, do not divest the Government of possession or title, so that it 
can not maintain an action of trespass for cutting timber on the land. 



158 'Boxing Trees for Turpentine — Dmnage^. 

Public Lands — Burden of Proof. 

In an action brought by the United States for trespass committed on Govern- 
ment lands the burden of proof is on the Government to show that the acts of 
trespass complained of were committed by defendant or by his command, or that 
they were done for his benefit or with his knowledge and consent, and were 
subsequently ratified by him. 
*■ * * *• * * * 

Same — -Evidence. 

In such a case, evidence that the employees of defendant, under his direction 
or superintendence, or that of his partner for their joint benefit, entered on the 
lands described in the complaint and cut turpentine boxes in the trees thereon, 
or (^hipped such trees for turpentine jiurposes, or removed therefrom crude tur- 
pentine, is sufficient to warrant a verdict against defendant. But if defendant 
merely bought turpentine from homestead claimants, having nothing to do with 
hiring hands, or chipping trees, or dipping or hauling turpentine, further than 
to pay for this work at the request of said claimants, and deducting the amount 
so paid from the agreed price of the turpentine, defendant is not liable. 

Same — Nominal Damages. 

In such a case, merely entering on the land and cutting boxes or chipping trees 
and removing therefrom crude turpentine entitles plaintiff to nominal damages, 
though no actual damages were done. 

Same — Compensatory Damages. 

In an action for cutting growing trees, if their value can be ascertained without 
reference to the value of the soil on which they stand, the measure of damages 
is the injury done them, and not the difference in the value of the land before 
and after such injury. 

Same — Exemplary Damages. 

In such a case the Government is entitled to exemplary damages, if the going 
on the land and cutting and chipping the trees or dipping and removing the 
tmpentine was done by defendant willfully, or if such acts were the result of a 
negligence so gross as to show willfulness or a reckless indifference to the rights 
of the Government. « 



TouLMiN, J. (charging- jury): 

This .suit is called an action of trespass, and is brought by the United 
States against the defendant to recover damages for trespasses alleged 
to have been committed b}' him in the years 1883 and 1884 on lands 
specifically described in the complaint and belong-ing to the Govern- 
ment of the United States. The United States charges the defendant 
with the trespass set forth in the complaint. He says he is not guilty 
of it. Under the plea of not guilty the Government must be prepared 
to prove the commission by the defendant, his servants, emplo3^ees, or 
agents, of the trespass of which it complains. It must be proved that 
the acts of trespass complained of were done by the defendant or by 

« As to when exemplary damages may be allowed, see Clarke v. Improvement Co., 
ante, 478, and note; Railroad Co. v. Roberts (Ky. ), 8 S. W. Rep., 459, and note; Rail- 
road Co. V. Arnold (Ala.), 4 South Rep., 359;" Webb r. (iilman (Me.), 13 Atl. Rep., 
688, and note; Railway Co. r. (iarcia (Tex.), 7 S. \\ . Rep., 802; Haines v. Shultz 
(N. J.), 14 Atl. Rep., 488; White v. Stribling (Tex.), 9 S. W. Rep., 81, and note. 



Boxing Trees for' Turpentine — Damages. 159 

his command, or that they were done for his benefit and with his knowl- 
edge and consent, and he subsequent!}- adopted and ratified them. 

It is not required that the acts of trespass should })e proved beyond 
a reasonable doubt, as in a criminal case. This is a civil suit, and all 
that is required is that you should be reasonably convinced from the 
evidence in the case that the defendant is guilt}-. The plaintiff's case 
should be satisfactorily proved. It is not necessary that the proof 
should be conclusive, but must be such as to reasonably convince you. 
If your judgments are thus convinced, after applying the ordinary 
tests for the ascertainment of truth, it would be your duty to find a 
verdict against the defendant. If your judgments are not thus con- 
vinced, it would be your duty to return a verdict of not guilty. 

Now, to enable a party to maintain an action of trespass he must 
have either actual or constructive possession of the land trespassed on 
at the time of the trespass. Constructive possession is such as the law 
annexes to the title, and will authorize this action. It is undisputed 
that the United States had the title to the land described in the com- 
plaint at the time of the alleged trespass. But it is contended on the 
part of defendant that the United States were not in such possession 
of the homestead lands mentioned in the complaint as to entitle them 
to bring this suit; that the occupancy of said lands by the homesteaders 
spoken of in the trial gave them the possession, and deprived the 
United States of the right to bring this particular suit; and it is fur- 
ther contended by the defendant that the receipts of the receiver of the 
land office, issued since this suit was brought, and which are submitted 
in evidence, divested the United States of the title to such homestead 
lands, and vested it in the homestead claimants, and that, for that 
reason, the United States are debarred from recovering, so far as the 
homestead lands are concerned. 

I charge you that the right of the homesteader is one of occupancy 
only, but with certain rights and privileges, subject to the right and 
duty of the Government to protect and preserve the timber on the land. 
He is not in adverse possession of the land until he is vested with the 
title to it })y the Government. In the meantime he has the privi- 
lege of clearing it for cultivation, and of cutting the timber down for 
that purpose, and such timber may be sold if not needed for improve- 
ments; but if sale and traffic is the only reason for cutting the timber 
on the land, or for removing any material therefrom, the law would be 
broken, and the person would be a trespasser. Hence I charge you 
that the United States had, when this suit was brought, and now 
have, such possession as entitles them to maintain this action; that the 
receipts of the receiver of the land office are not, of themselves, sufficient 
evidence that the Goverument\s title has been divested, and that it has 
vested in the homestead claimants. Until they have made the final 
proof and acquired the title — that is, so fulfilled their obligations under 
the law as to entitle them to patents — it is not allowable to them to cut 



160 Boxifig Trees for Txiri^entine — Damages. 

the timber on the lands, or take any crude turpentine or other material 
therefrom for the purpose of sale or speculation. The certificate of the 
receiver and register would be sufficient evidence of their right to a 
patent, and would be a defense to this action so far as the homestead 
lands are concerned; but the receiver's receipt alone is not sufficient. 

Any person who cuts or removes timber or other material, or who 
hires others to cut or remove timber or other material, or who incites or 
induces others to cut or remove timber or other material from Govern- 
ment land, for his personal benefit or advantage, or for the purpose of 
gain (except he has the right or permission to do so from the Govern- 
ment), is a timber trespasser upon Government lands. And an}^ person 
who commits timber trespass upon Government land is liable to civil 
suit for the value of the material taken and the damages sustained b}^ 
the cutting of the timber. Now, gentlemen, if you believe from the evi- 
dence that the employees of the defendant entered on the lands described 
in the complaint, or any of them, and cut turpentine boxes in the trees 
on such land, or chipped such trees for turpentine purposes, or removed 
therefrom crude turpentine, and this was done by his direction or super- 
intendence, or by that of his partner for their joint benefit, it would be 
your duty to find him guilty in this suit. If he had the right or permis- 
sion from the Government to do so, it devolves on him to show it. But 
if you believe from the evidence that the defendant's arrangement with 
the homesteaders was simply to buy the turpentine from them, he having 
nothing to do with having the hands hired, or the trees chipped, or the 
turpentine dipped or hauled from the land, further than to pay for this 
work at the request of the homesteaders, for and on their account and 
at their request, deducting the amount so paid from the agreed price of 
the turpentine, then he would not be liable in this suit as a trespasser 
on the homestead land. 

The evidence before you, and which you are to consider, is both of a 
positive and circumstantial charaK^ter, and as a part of this evidence 
you have a statement in writing of what it is admitted certain absent 
witnesses would testify if they were present. This admission is that 
if the witnesses were personally present they would testify to the facts 
stated. This statement of the facts the witnesses would prove stands 
in the place and is the substitute for the oral testimony the witnesses 
would give if personally present. The witnesses being personally pres- 
ent, the evidence given by them would be subject to contradiction, and 
the substitute for that evidence is equally open to contradiction. There 
is some conflict of evidence in this case. It is your duty to reconcile it, 
if 3"0U can, so as to m^ke all the witnesses speak the truth. If j^ou can 
not do this, if you find it impossible to harmonize the testimony, then 
it is for you to say which you will believe and which you will disbelieve, 
which you will accept as true and act upon and which 3'ou will reject. 



Boxing Tr'ees for Turpentine — Damages. \'o\ 

In determining' ttiis question you will look at the other facts and cir- 
cumstances as shown by the evidence, and see which of the witnesses has 
been corroborated or sustained by these facts and circumstances; what 
interest they have, or what motives actuate them in testifying one wa}^ or 
the other; what means and opportunities they had of knowing what 
they have testified to. Now, when you have considered all these 
things, you say where the truth is; for 3^ou, gentlemen, are the exclu- 
sive judges of the sufficiency and weight of the evidence in this case. 
You say what weight you will give it, both positive and circumstan- 
tial, and whether it is sufficient to reasonably satisfy j'ou that the 
defendant had turpentine boxes cut or trees chipped on the lands 
described in the complaint, or any of them, and had removed there- 
from the crude turpentine; and it would be equally a trespass if he 
entered on the land and chipped trees and removed therefrom crude 
turpentine which accumulated in boxes which had been before cut in 
the trees by other persons, if you should find from the evidence that 
there were an}^ such. 

Now, if you believe from the evidence that the defendant's employees 
entered on the lands described in the complaint, or any of them, and 
cut boxes in the trees thereon, or chipped the trees, and removed the 
crude turpentine therefrom, nominal damages would be recoverable, 
even though no damage in fact was done. The theory of a suit like 
this is that the breaking of the "close" (as it is called) is the cause 
of action. Breaking into the close of another means an unauthorized 
intrusion into the land of another, and this will authorize nominal 
damages in any event; and any injury to the timber on the land, either 
by boxing or chipping or any removal of crude turpentine therefrom 
merely enhances the damages, and all damages which naturally result 
from the wrongful act, and are directly traceable thereto, are recover- 
able. In an action for damages in cutting growing timljer or trees 
the recovery is not limited to their actual value for firewood, turpen- 
tine purposes, or for timber or lumber purposes, hut the actual injure- 
to the estate by the cutting of the trees; and in determining the question 
it is proper to show the purpose for which the trees were designed and 
could have been used. If the trees, although the}' are part of the 
realty, have a value which can be accurately measured and ascertained 
without reference to the soil on which they stand, the recovery may 
be of the value of the trees destroyed (if any were destroyed), or of 
the injury done to them, and not for the difference in the value of the 
land before and after such injury. You determine the value of the 
trees after cutting and working, with reference to the peril to which 
they were then exposed from fire, ravages of w(n-nis, or dcx-ay, caused 
or traceable to the trespass of the defendant, if he counnitted anv. 
The inquiry is. What is the amount of injury which the Government 
21150—03 11 



162 Boxing Trees for Turpentine — Damages. 

has suffered from the whole trespass taken as a continuous act? — going 
on the land, cutting the trees, chipping them, and removing the crude 
turpentine therefrom, during the years 1883 and ISSi. 

Now, it is claimed here that the Government is entitled to more than 
actual damages; that exemplary damages, or "smart money," as it is 
called, should be given. If the going on the land and cutting and 
chipping the trees, or the dipping and removing of the turpentine, was 
done by the defendant willfully, or was the result of negligence so 
gross as to show willfulness or a reckless indifference to the rights of 
the Government, you may, in your sound discretion, go beyond the 
boundar}^ of mere compensation for the injury done and award exem- 
plary damages. Now, gentlemen, take the case. Ascertain from the 
evidence what the truth is as to the guilt or innocence of the defend- 
ant, and as you find that truth so let your verdict be. And if you find 
the defendant guilty, say by your verdict what damages the Govern- 
ment is entitled to recover from him for the injrry done. 



Special Agent JR. xi. Vanclea/ve to Commissioner General Zand Office^ 

Novemher '28, 1888. 

In the United States court for the southern district of Mississippi, 
November term, 1888, * * * His Honor Judge R. A. Hill ruled 
in the cases tried at this term of said court as follows: 

When the purchaser bought crude gum with a knowledge of the trespass, he was 
Uable for the manufactured value without deduction for the expense of manufactur- 
ing. That an innocent purchaser of crude gum, without knowledge of the trespass, 
from a willful trespasser is liable only for the value of the crude gum at the time of 
the purchase, and that the price paid l:»y said purchaser is tlie amount the Govern- 
ment is entitled to recover. 

INJURY, PRESENT AND PROSPECTIVE, INFIICTED UPON TREES BY 

"BOXING,'' ETC. 

(4L. D., 1.) 

In determining the amount of damages resulting from "boxing" trees for turpentine, 
the injury, present and prospective, inflicted upon the trees should be included. 

Acting Searetary Muldroiv to Commissioner Sparks, July 1, 1885. 

I am in receipt of 3^our lettei' of the 15th of June last, inclosing 
report of Special Agent Griffin, dated June -1, 1885, relative to the 
matter of the measure of damages in case of trespass by "boxing"'' 
trees upon the public land for turpentine. 

For years past the Department has at intervals h^Qw called upon to 
examine into cases of turpentine trespass presented for its action, and 
has, as a general rule, recommended suit for the recovery of the value 



Boxing Trees for Turpentine — Damages — Accretions. 168 

of the material taken. Experience, however, clearly shows that such 
action has entirely failed to accomplish the suppression of such unlaw- 
ful operations. Parties against whom judgments have been obtained 
have continued to violate the law even upon an enlarged scale, def }'- 
ing the agents of the Government to their faces, and other parties in 
the immediate vicinity have entered upon the work of destruction, 
in no way deterred by the punishment previously visited upon their 
neighbors. 

The report of Agent Griffin, full and explicit as it is, simpl}" corrobo- 
rates the information already received from other sources, that a pine 
forest, when used as a "turpentine orchard," is doomed to entire de- 
struction. A "box" or gash is cut into the side of a tree, perhaps 10 
inches wide and 6 inches deep, and of such a shape as to catch and 
retain a considerable quantit}*^ of the crude turpentine gum. The next 
year another "box" is cut at another point in the circumference of the 
tree, and so on. Besides this, the tree is subjected to a "chipping" 
process, the bark being cut through down into the woody portion for 
12 or 18 inches above the upper edge of the "box," in order to keep a 
fresh bleeding surface continually exposed. In four or live years the 
life of the tree is exhausted. Even should the process of "boxing" 
be discontinued decay will ensue from the action of the weather and 
worms upon the portion of the wood alread}^ exposed. There can be 
no healing process and no future growth to a pine tree once tapped b}^ 
the turpentine gatherer's ax. Drippings of gum accumulate in the 
"boxes " and about the root of the dying tree. From the carelessness 
of some traveler or from lightning striking some tree in the forest 
fires originate and the entire timber is consumed. After its destruc- 
tion the land will be covered in a few years with a growth of worthless 
scrub oaks, rendering it entireh" valueless. 

In view of these considerations I concur in 3'our opinion that the 
measure of damages heretofore estimated in such cases, based upon 
the value of the material procured, is insufficient to indenmif}- the 
Govei'nment for the actual loss resulting from the boxing of trees for 
turpentine ; and you are hereby authorized and directed to assess upon 
depredators of this class hereafter a measure of damages which shall 
include the injur}^, present and prospective, inflicted upon the trees 
which have been subjected to the operation. 

TIMBER UPON ACCRETIONS THAT ARE PUBLIC LANDS. 

Accretions formed b}" washing or recession become part of the lands 
they adjoin. 

Removing timber from accretions that are public lands, except for 
improvement of the same or other domestic use, is trespass upon such 
lands, and liable to punishment as such. (See 1 L. D., 596.) 



164 Timber for Railroad Purposes. 

TIMBER FOR RAILROAD PURPOSES. 

[Act of March 3, 1875; 18 Stat., 482.] 

AN ACT granting to railroads tlie right of way through the pubhc landa of the United 

States. 

Be it eyiacted., etc. ^ * * * That the rig-ht of way through the 
public lands of the United States is hereby granted to any railroad 
company duly organized under the laws of any State or Territory, 
except the District of Columbia, or by the Congress of the United 
States, which shall have filed with the Secretary of the Interior a copy 
of its articles of incorporation, and due proofs of its organization under 
the same, to the extent of one hundred feet on each side of the central 
line of said road; also the right to take, from the public lands adjacent 
to the line of said road, material, earth, stone, and timber necessary 
for the construction of said railroad; * *. * 

•X- % -k -X- * * » 

Sec. -1. That any railroad company desiring to secure the benefits of 
this act shall, within twelve months after the location of any section 
of twentj^ miles of its road, if the same be upon surveyed lands, and, if 
upon unsurve3^ed lands, within twelve months after the survey thereof 
by the United States, file with the register of the land ofiice for the 
district where such land is located a profile of its road; and upon 
approval thereof by the Secretary of the Interior the same shall be 
noted upon the plats in said office; and thereafter all such lands over 
which such right of way shall pass shall be disposed of subject to such 
right of wa}^: Provided., That if any section of said road shall not be 
completed within five years after the location of said section, the rights 
herein granted shall be forfeited as to any such uncompleted section 
of said road. 

Sec. 5. That this act shall not apply to any lauds within the limits 
of any militar}^ park, or Indian reservation, or other lands especially 
reserved from sale, unless such right of way shall be provided for by 
treaty stipulation or by act of Congress heretofore passed. 

Sec. 6. That Congress hereb}^ reserves the right at any time to alter, 
amend, or repeal this act, or any part thereof. 

By the above act all duly organized right-of-way railroads are 
authorized to take .timber from the public lands adjacent to the line of 
the road for construction purposes. All land-grant railroads are like- 
wise authorized, in the several granting acts, to take timber from the 
public lands adjacent thereto for construction purposes. The act of 
September 29, 1890 (26 Stat., 496). forfeited the grants to all uncom- 
pleted railroads to the extent of the grants for the unconstructed por- 
tions of such roads. 

No authority is granted to take public timber for use as fuel or for 
repairs, except in the case of the grant to the Denver and Rio Grande 



Timber for Railroad Purposes. 165 

Railway Company by the act of June 8, 1872 (17 Stat, 339), which 
allows the taking of public timber for purposes of repair on the por- 
tion of the line constructed thereunder. 

Under these acts timber can onl}^ be taken from public lands for rail- 
road purposes by the railroad companies direct, through their con- 
tractors or duly appointed agents. 

No timber may be taken from public lands for the purpose of sell- 
ing the same to a railroad company. No railroad company is author- 
ized by the above acts to procure or cause to be procured timber from 
public lands for sale or disposal either to other companies or to the 
general public. 

LANDS ADJACENT, ETC. 

Stone v. United States. 

Circuit court of appeals, ninth circuit (64 Fed. Rep., 667). 



Railroad Companies — Construction of Road — Right to Timber on Adjacent 
Public Lands. 

Act of March 3, 1875 (18 Stat., 482), which grants to railroad companies the 
right of way through public lands and the right to take from the public lands 
"adjacent to the line of said road" timber necessary for its construction, does 
not authorize the taking of timber for the construction of a road from public 
lands 50 miles distant from the road. 

See also United States v. Henry Hazlett, cited on page 119; Stone?'. 
United States, cited on page 140, and United States v. St. Anthony 
R. R. Co., cited on page 171. 

United States v. Lynde et al. 

Circuit court, district of Montana (47 Fed. Rep., 297). 

Public Lands — Northern Pacific Railroad — Right to Cut Timber for Con- 
struction. 

Act Congress, section 2 (13 Stat., 365), granting to the Northern Pacific 
Railroad Company "the right, power, and authority * * * to take from 
the public lands adjacent to the line of said road, material of earth, stone, tim- 
ber, etc., for construction thereof," was not intended to apply only to pub- 
lic lands contiguous to or adjoining the line of the road, but may extend to 
other lands. 
Same — Use op Timber on Any Part op Line. 

Timber taken from lands adjacent to the line of the railroad may be used for 
construction upon any part of it. 

Denver & R. G. R. R. Co. v. United States (two cases). 

Circuit court, district of Colorado (34 Fed. Rep., 838). 

Public Lands — License to Railroads to Cut Timber. 

Act Congress June 8, 1872 (17 Stat., 339), granted to the D. & R. G. R. R. Co. 
the right to take stone, timber, etc., from public lands for the construction and 
repair of its railway, provided it was completed within five years from its pas- 



166 Timher for Railroad Purposes. 

sage; and in case of default the act was to be null and'void as to the unfinished 
portion of the road. This act was amended to change the five years to ten. By 
act Congress March 3, 1875, a general grant to railroads was made similar to the 
special grant of the act of 1872, except that it limited the right to material to 
that necessary for the construction alone. Held that the D. & R. G. E. R. Co. 
was entitled to the privileges of both acts. 

Same — Place of Use. 

Where a railroad has the right to take timber from the public lands adjacent 
to its right of way to use for purposes of construction, it can take timber so 
obtained to any point of the line, however distant from the place of cutting. 

Same. 

For the rights granted under the general act of 1875, the portions of the D. & 
R. G. R. R. built before and after June 8, 1882, are to be treated as one road, 
and timber can be taken from the entire line for the construction of any portion 
of the line provided for in the original organization. 

Same — Purposes of Use. 

Under these acts section and depot houses, snowsheds, and fences are a part 
of the railroad. 
Same — Repairs. 

Under these acts no timber can be taken from the public lands for the repair 
of any portion of the D. & R. G. R. R. Co.'s tracks not completed before June 
8, 1882, and for that portion onh' from the lands adjacent thereto. 

Same — Additions. 

After a railroad line is once completed it has no right under act Congress 
March 3, 1875, to take timber from the public lands to build new switches and 
side tracks. 

Error from district court, district of Colorado; Hallett, judge. 

The United States, plaintiff, sued the Denver and Rio Grande Rail- 
road Company and others, defendants, in two suits, for cutting- timber 
illegally on the public lands. Judgment for plaintiff, and defendants 
bring error. Both suits were consolidated. 

Brewer, C. J.: 

These two cases come here on error from the district court, judg- 
ments having been rendered there in favor of the United States and 
against the plaintiff' in error for the full amounts claimed. Each case 
was tried on an agreed statement of facts. On June 8, 1872, Congress 
passed an act making a grant to the Denver and Rio Grande Railway 
Compan}' (17 Stat., 339). The material portion of that grant is as 
follows: 

That the right of way over the public domain, one hundred feet in width on each 
side of the track, together with such public lands adjacent thereto as may be needed 
for depots, shops, and other buildings for railroad purposes, and for yard room and 
side tracks, not exceeding twenty acres at any one station, and not more than one 
station in every ten miles, and the right to take from the public lands adjacent 
thereto stone, timber, earth, water, and other material required for the construction 
and repair of its railway and telegraph line be, and the same are hereby, granted 
and confirmed unto the Denver and Rio Grande Railway Company, a corporation 
created under the incorporation laws of the Territory of Colorado, its successors and 
assigns: * * * Provided., That said company shall complete its railway to a point 



Timber for Railroad Purposes. 167 

on the Rio Grande as far south as Santa Fe within five years of the passage of this 
act, and shall complete fifty miles additional south of i^aid point in each year there- 
after; and in default thereof the rights and privileges herein granted shall be ren- 
dered null and void so far as respects the unfinished portion of said road. 

Subsequently this proviso was changed so as to give ten years 
instead of five (19 Stat., 405). On March 3, 1875, Congress passed an 
act making a general grant "to any railroad company dulj" organized 
under the laws of any State or Territor}-," etc^, which grant, for all 
questions that arise in this case, is similar to the special grant to the 
Denver and Rio Grande, except that in the general grant the right to 
take material, earth, stone, and timber is limited to what may be nec- 
essary for the construction, and not, as in the special grant, for con- 
struction and repairs. 

The agreed statement of facts in the first case is as follows: That it 
is agreed — First, that the timber sued for in said action was cut by 
William A. Eckerh' & Co., as agents for the Denver and Rio Grande 
Railway Company, and delivered to said railway- company. Second, 
that the attached statement correctly shows the kinds and amounts of 
timber so cut and delivered, and also shows the time of cutting, the 
purposes for which it was cut and used, and the prices paid for cutting 
and delivering the same. Third, that said timber was cut in Montrose 
County, Colo., and near the town of Montrose, and upon public, unoccu- 
pied, and imentered lands of the United States. Fourth, that the lands 
from which the timber was cut were along and near and adjacent to 
the line of railway of said company. Fifth, that the portion of the 
line of railway through said county of Montrose, and in the vicinit}' of 
said town of Montrose, was not constructed or completed until after 
June 8, 1882, and that on June 8, 1882, said line of railwa}^ was only 
constructed and completed as far westward of Cebolla, in Gunnison 
County, Colo. Sixth, that said company had not completed its line of 
railway to Santa Fe on June 8, 1882, nor has it ever so completed it. 
Seventh, that of the timber cut as aforesaid a part was used on por- 
tions of the line of railway out to Grand Junction, constructed and 
completed after June 8, 1882, and for the purpose of construction of 
railway, erection of section and depot houses, snowsheds, fences, etc., 
and a part was shipped b}^ the Denver and Rio Grande Railway for 
similar purposes to the Denver and Rio Grande Western Railwaj^, to be 
used in the Territor}^ of Utah, as shown in attached statement; and 
$1,000 worth was used for repairs on portions of road completed prior 
to June 8, 1882. Eighth, that as to all of its line of railway constructed 
after June 8, 1882, the said company strictly complied with all the 
requirements of the act of Congress approved March 3, 1875, entitled 
"An act granting to railroads the right of way through the public lands 
of the United States." Ninth, that upon the foregoing agreed state- 
ment of facts the following questions are to be submitted to the court 



168 Thnher for Railroad Purposes. 

for decision: {a) Whether under the act of June 8, 1872, and an act of 
March 3, 1.S77, amendatory thereof, the Denver and Rio Grande Rail- 
way Company liad a right to cut timber for any purposes on public 
land of the United States adjacent to portions of its line of railwa}?^ 
constructed and completed after June 8, 1882. (b) What are "adja- 
cent" lands within the meaning of the act of Congress approved June 
8, 1872, entitled " An act granting the right of way through the public 
lands to the Denver and Rio Grande Railway Company," and the act 
of Congress of March 3, 1875, entitled "An act granting to railroads 
the right of way through the public lands of the United States?" 
{c) Whether under said acts said company could cut timber on public 
lands of the United States adjacent to the portion^ of the line of rail- 
way completed subsequently to June 8, 1882, to be used for purposes of 
repair and for station and section houses, and for fences and snowsheds 
on those portions of said railwa}^ line constructed and completed prior 
to June 8, 1882. {d) Whether under such statutes said railway com- 
pan}^ could cut timber from public lands adjacent to portions of the line 
of railway completed after June 8, 1882, to be used for any purposes on 
portions of the line of railway constructed and completed after June 8, 
1882, and if so, for what purposes? {e) Whether the terms of the 
statute giving .said railway company the right to take timber "for the 
construction and repair of its railway lines" would in any wise com- 
prise and comprehend the erection, building, and repair of section and 
depot houses, snowsheds, fences, and rolling stock. {/) Had the said 
railway company the right, imder the act of March 3, 1876, to take 
from adjacent public lands material — earth, stone, and timber— neces- 
sar}' for the construction of its railroad? {g) To what extent and for 
what amount the Denver and Rio Grande Railway Company is respon- 
sible for timber cut as aforesaid and shipped to Utah for use on the Den- 
ver and Rio Grande W^estern Railway. {Ji) To what extent and for what 
amount said railway company is liable, if at all, upon the above agreed 
statement of facts and upon the law as it shall be decided by the court. 
Tenth, that this case is a test case to obtain a definite and positive 
adjudication by a court of competent jurisdiction of the various points 
set out above and of the rights of said railway company" with regard 
to cutting timber from public lands under the act of June 8, 1872, 
under the amendatory act of March 3, 1877, and under the act of March 
3, 1875. Eleventh, that judgment shall be entered b}^ the court upon 
the foregoing statement of facts, and upon the law as it shall decide 
it, and at a valuation for said timber as set out in the annexed state- 
ment. Twelfth, that the admissions made in this statement of facts 
shall bind the parties hereto only for this suit, and shall not bind them 
as to any other matter or case. 

There is some dispute between counsel as to the questions that are 
involved in and presented b}^ these facts. I shall not attempt to con- 



Tiinher for Railroad Purposes. 169 

sider anj' that 1 do not think are fairl}' and olearl}' presented b}' the 
facts. The fourth paragraph stipulates that the lands from which the 
timber was cut were adjacent to the line of railway- hence I shall not 
stop to consider how near land must be to be adjacent— whether half a 
mile or ten miles. I certainl}- do not agree with the idea which seems 
to be expressed elsewhere, that the proximity of the lands is immate- 
rial, or that Congress intended to grant anything like a general right 
to take timber from public land where it was most convenient. The 
grant was limited to adjacent lands, and I do not appreciate the logic 
which concludes that, if there be no timber on adjacent lands, the grant 
reaches out and justifies the taking of timber from distant lands — land 
fifty or a hundred miles awa}^; nor do I understand that the rule con- 
trolling the construction of ordinary public grants, to the effect that 
they are construed strictl}' against the grantee, does not appl}^ to these 
grants. 

The first question is whether the railroad compan}^ can avail itself of 
both the special act of 1872 and the general grant of 1875. It was held 
by the district judge that it could, and I agree with him in that con- 
clusion. It is unnecessary to do more than refer to the opinion filed hy 
ni}' brother Hallett for sufiicient reasons for his conclusion. The prin- 
cipal question, however, is this: My brother Hallett was of the opinion 
that the place of use of the timber on the line of the railway was to be 
considered as well as the place of cutting in determining the rightful- 
ness of the appropriation by the company. He thought that the right 
to cut timber extended to onl}^ so much timber as should be used in the 
construction of the road opposite, or nearly so, to the place of cutting; 
that if timber should be cut within a half mile of the road, and then 
carried on the cars of the company a hundred miles, and there used in 
the construction of the road, it could not be said to be taken, within 
the purview of the act, from adjacent lands. So he concluded that the 
right to take timber was limited by the place of use, and that, as each 
section of the road of reasonable length was completed, the right to 
take timber on lands adjoining such section was gone. In other words, 
the grant of timber was exhausted pari passu with the construction of 
the road. In this view, with all deference to the learned judge, I 
think he was mistaken. 

While grants of this nature are to be strictly construed, the}^ are to 
be fairly construed, and so as to carry into effect the intent of the 
grantor. In determining what is granted we of course look first to 
the language used. Now, in these grants the place of cutting, as well 
as the use to which the timber cut ma}^ be put, are both expressed. 
The place is the public lands adjacent to the line of the "road. The use 
is the construction of the railroad, not a part of the railroad, but of the 
railroad as a whole, and of course including therein every part of it. It 
does not purport to grant the right to take timber from adjacent pub- 



170 Tbnber for Railroad Pm'poses. 

lie lands for use in the construction of the railroad opposite the place 
of cutting, and these last words will have to be implied in order to 
place the limit on the grant given to it by the district judge. It would 
have been so easy to use such words of limitation that their omission 
makes strongly against an intent of such limitation. Let me make an 
illustration. Suppose the owner of a section of land made a grant to 
a railroad company of a strip 50 feet in width through his land for a 
right of way, and by the same instrument granted to the company the 
right to take stone and earth from land near this right of way for 
the pvirpose of constructing its road. This would be precisely parallel 
to the case at bar, the difference being only one of size. Now, would 
it be contended that under such a grant the company was limited for 
each rod of distance to the stone and earth which might happen to be 
opposite such rod? Would not a fair and reasonable construction, one 
expressing the intent of the grantor, be that the company could take 
stone and earth from any place which was near to the right of way for 
use in the construction of any part of the road through the section ? If 
that would be true in the lesser illustration, would it not also be true 
in the larger case before us ? Can it be that Congress intended to aid 
in the construction of only a part of the railroad ? It must have known 
that there were large extents of territory in this Western country tree- 
less and without suitable stone for culverts and bridges. Did it mean 
to aid in the construction of such part of the road as ran through a 
timber country, or where there was suitable stone, and leave the com- 
pany unaided in the construction of other parts ? It seems to me both 
the language of the statute and the intent of the grantor are against 
the views entertained by my brother Hallett. 

But, beyond this, the decision of the Supreme Court in the case of 
U. S. V. Railroad Co. (98 U. S., 334) seems to me decisively against 
those views. In that case the facts were these: By the nineteenth sec- 
tion of the act of July 2, 1864, there was granted to the railroad com- 
pany for the purpose of aiding in the construction of its road every 
alternate section of public land (except mineral land), designated by 
odd numbers, to the amount of 10 alternate sections per mile on each 
side of the road on the line thereof not reserved, etc. By the twentieth 
section, whenever 20 consecutive miles were completed and accepted 
patents were to be issued to the company for land on each side of the 
road to the amount designated. It was contended that this grant was 
to be measured by the separate sections of 20 miles of road, and that, 
to fill out the grant, land must be taken opposite each section, respec- 
tively. But the court ruled otherwise, and held that the grant was in 
aid of the construction of the road as a whole, and might be filled out 
by lands anywhere along the line. I quote the language of the opinion: 

The position that the grant was in aid of the construction of each section of 20 
miles, taken separately, and must be limited to land directly opposite to the section, 



Timher for Railroad Purposes. 17 1 

is equally untenable. The grant was to aid in the construction of the entire road, 
and not merely a portion of it, though the company was not to receive patents for 
any land except as each 20 miles were completed. The provision allowing it to 
obtain a patent then was intended for its aid. It was not required to take it; it wag 
optional for it then, or to wait until the completion of other sections or of. the entire 
road. The grant was of a quantity of land on each side of the road, the amount 
being designated at so many sections per mile, with a privilege to receive a patent for 
land opposite that portion constructed as often as each section of 20 miles was com- 
pleted. If this i^rivilege were not claimed, the land could be selected along the 
whole line of the road without reference to any particular section of 20 miles. When 
lateral limits are assigned to a grant, the land within them must, of course, be 
exhausted before land for any deficiency can be taken elsewhere; and when no lateral 
limits are assigned the Land Department of the Government, in supervising the 
execution of the act of Congress, should undoubtedly, as a general rule, require the 
land to be taken opposite to each section, but in some instances good reasons may 
exist why a selection elsewhere ought to be permitted. If, as in the present case, by 
its neglect for years to withdraw from sale land beyond 20 miles from the road, the 
land opposite to any section of the road has been taken up by others, and patented 
to them, there can be no just objection to allowing the grant to the company to be 
satisfied by land situated elsewhere along the general line of the road. 

This sustains me in the construction I place upon these grants, that 
only two things are necessary in determining the rightfulness of the 
appropriation of timber: First, that it be taken from public lands 
adjacent to the line of road; and, second, that it be used in the con- 
struction of the road. This disposes of substantially all the questions 
in the case. One or two minor matters remain for notice. 

As appears from the agreed statement of facts, a part of the road was 
completed before June 8, 1S82, the time limited by the special act and 
its amendment, and a portion has been constructed since. For con- 
venience 1 shall call the first part the old line and the latter part the 
new line. Now, the special right given b}" the special act — that is, the 
right to take timber for repairs — is by the proviso specifically limited 
to the old line, so that no timber can be taken from lands adjacent to it 
for repairs on the new line, and, converselv, none from land adjacent to 
the new line for repairs on the old. Again, for the rights granted under 
the general act both the old and the new lines are to be taken as parts 
of one road, so that timber can be taken from any part of the entire line 
for the construction of any part of the road provided for in the original 
organization. Again, I think there can be no doubt that section and 
depot houses, snowsheds, and fences are properly to be considered, in 
the purview of the act, a part of the railroad. 

1 have not hitherto noticed the agreed statement of facts in the 
second case, for the matters that I have been considering disposed of 
ever}' question in that case except that which arises upon the eighth 
paragraph, which is " that one-fourth of said timber has been used in 
the construction of new switches and side tracks along the line of road 
completed subsequent to June 8, 1882," and that presents the question 
whether this timber was used in the construction of the railwaj\ On 



172 Timber for Railroad Purposes. 

the one side it is claimed that this refers to repairs, new switches, etc., 
being in lieu of old switches, etc. On the other hand, it is claimed that 
this means absolutely new switches, etc.; that is, switches, etc., where 
there were none before. I think it immaterial which is the meaning. 
Of course if repairs, it was unlawful, because upon the new line; and 
if, on the other hand, absolutely new switches and side tracks, they 
were upon a line of road alread}' completed, so that the}^ were merely 
additions, extensions, and improvements. The grant does not extend 
to these matters, but is exhausted when the line is once completed. 
Of course we all know that th'e developments of the country and 
increase of business will require constant additions — new depots, sec- 
tion houses, switches, and side tracks. The demand for these will 
never be exhausted, but will continue as long as the surrounding coun- 
try increases in population and business. Now, the grant was not 
intended to aid in supplying these successive demands. It was to 
aid in the first construction, and when that was completed the grant 
was exhausted. So, in either event, this appropriation of timber was 
unlawful. 

Of course the supply of timber for other roads was not within the 
contemplation of the act. 

This disposes of all questions in the case. From the views above 
expressed, it follows that the judgment of the district court in each 
case must be modified. In the first case judgment will be entered in 
favor of the Government for the amount of timber shipped to the Utah 
lines and for the $1,000 worth of timber cut on land adjacent to the 
new lines for repairs on the old, and in the second place judgment 
will be for the one-fourth which was used in the construction of new 
switches and side tracks. 

United States v. Denver and Rio Grande Railway Company. 

Error to the circuit courtof the United States for the district of Colorado (150 U. S., 1). 

After the expiration of the time Umited by the act of June 8, 1872 (17 Stat., 339, ch. 
354) , for the completion of its road to Santa Fe, if not before that time, the Den- 
ver and Rio Grande Railway Comijany was entitled to claim the benefit of the 
act of March 3, 1875 (18 Stat., 482, ch. 151), upon complying with its conditions. 

The act of March 3, 1875 (18 Stat., 482, ch. 151), granting a right of way to railroads 
through the public lands, and authorizing them to take therefrom timber or 
other materials necessary for the construction of their roadways, station build- 
ings, depots, machine shops, side tracks, turn-outs, water stations, etc., ijermits 
a railway company to use the timber or material so taken on portions of its line 
remote from the place from which it is taken. 

In its ordinary acceptation and enlarged sense, the term "railroad" includes all 
structures which are necessary and essential to its operation. 

While it is well settled that public grants are to be construed strictly as against the 
grantees, they are not to be so construed as to defeat the intent of the legisla- 
ture or to withhold what is given. 



Timber for Railroad Purposes. 173 

General legislation, offering advantages in the public lands to individuals or corpo- 
rations as an inducement to the accomplishment of enterprises of a quasi public 
character through undeveloped public domain should receive a more liberal 
construction than is given to an ordinary private grant. 

It is not decided that the act of March 3, 1875, gave a right to take timber from the 
public domain for making rolling stock; nor what structure, if any, not enu- 
merated in that act, would constitute necessary, essential, or constituent parta 
of a railroad. 



Seattle, Wash. , October 1'2, 1893. 
Sir: I have the honor to acknowledge the receipt of your letter 
of October 5 "■ * * concerning- my request of Jul}^ 18, 1893, for 
reinvestigation of timber trespass case against Chatteroy Lumber 
Company. 

* -x- * * * * * 

On the trial it was proved that the timber was all cut from lands 
within 2 miles of the line of the road. The court instructed the jury 
that the word "adjacent" used in the act, under the evidence in that 
case, meant anywhere within 5 miles of the line of the road. 

* * ***** 

I am, very respectfully, your obedient servant, 

Wm. H. Brinker, 

United States Attorney. 
Commissioner of the General Land Office, 

Washington., D. C. 



United States v. Price Trading Co. et al. 

Circuit court of appeals, eighth circuit (109 Fed. Rep., 239). 

1. Public Lands — Cutting of Timber by Railroad Company — Construction of 
Statute. 

Under act March 3, 1875 (18 Stat., 482), granting to railroads a right of way 
through the public lands of the United States, a railroad company constructing 
its line in conformity with its provisions, and which is thereby given the right 
to take timber from public lands adjacent, to be used in the construction of its 
road, is authorized to take timber from lands adjacent to any part of its com- 
pleted main line for use in the original construction of a branch line which it is 
authorized by its charter to build, although such branch is not constructed for 
several years after the main line. 
******* 

United States i\ Eccles et al. 

Circuit court, district of Utah (111 Fed. Rep., 490). 

1. Public Lands — Right of Railroad Company to Cut Timber — Construction 
OF Statute. 

Act March 3, 1875 (18 Stat., 482), granting right of way for railroads over the 
public lands, which confers on a company so constructing its road, "which shall 



174 Timber for Railroad Purposes. 

have filed with the Secretary of the Interior a copy of its articles of incorpora- 
tion and due proofs of its organization under the same," the right to take timber 
and other materials for the construction of its road from public lands adjacent to 
its line, confers no right to cut timber for such purpose prior to the filing of the 
required papers, nor does the subsequent use in the construction of the road of 
timber so cut render the cutting lawful or divest the title of the United States 
thereto, since the act does not give the right to appropriate timber already cut. 
2. Same — Action for Unlawful Cutting of Timbek — Defenses. 

Where defendants, in an action by the United States to recover the value of 
timber cut from public lands, defend on the ground that the timber was taken 
for use in the construction of a railroad, as authorized by act March 3, 1875, the 
burden rests on them to bring themselves within the provisions of such act; and 
when it appears that at least a part of the timber was cut before the railroad 
company had filed its articles and proof of organization with the Secretary of 
the Interior, so as to be entitled to take timber for its use, it is incumbent on 
the defendants to show what part, if any,- was cut after that time. 

United States v. St. Anthony R. Co. 
Circuit court of appeals, ninth circuit (114 Fed. Rep., 722). 

1. Public Lands — Cutting Timber — Right of Railroad. 

Under act March 3, 1875, section 1, granting railroad companies the right of 
way through public lands, with right to take from public land "adjacent" to 
the line of railroad timber necessary for the construction of the road, timber cut 
at a distance from the road of 17 to 23 miles by air line, 20 to 25 miles by wagon 
road, and 22 to 26 miles by the windings of a river down which some of it was 
floated, was taken from "adjacent" land within the meaning of the act, it 
appearing that it was a barren, frontier country, with no suitable timber nearer 
than that taken, and that the lands from which it was taken were materially 
benefited by the road, and the timber could be hauled that distance with rea- 
sonable profit. 

2. Statute — Construction. 

In act March 3, 1875, section 1, the meaning of the word "adjacent" as applied 
to public lands should be determined bj' the evidence in each particular case. 

RAILROAD RIGHT OF Tr.4 3— .ICT OF MARCH 3, 1875. 

Kootenai Valley R. R. Co. 

(28 L. D., 439.) 

As between the United States and a railroad company claiming the benefit of the act 
of March 3, 1875, the company is entitled to take from the public lands adjacent 
to the line of its proposed road timber and material necessary for the con- 
struction thereof, on the filing of its articles of incorporation and due proofs 
of organization, as provided in section 1 of said act. 

The articles of incorporation and proofs of organization are required by said act to be 
filed with the Secretary of the Interior, and where the same are found sufficient 
to identify the company as a beneficiary of the grant and are accepted by the 
Secretary, the right acquired by said acceptance will relate back to the time 
when said articles and proofs were presented, so as to protect the company in 
any subsequent use of timber and material necessary for the construction of the 
road. 



Timber for Railroad Purposes. 175 

If timber necessary for the construction of the road can not be found laterally adja- 
cent to and within the termini of the proposed road, it is permissible to go 
beyond said termini to secure such material. 

In determining whether the timber is taken from lands adjacent to the line of the 
proposed road, the nature of the country to be traversed by said road and the 
most available means of transportation may be considered. 

Secretary Hitchcock to the Commissioner of the General Land Office, 

May 31, 1899. 

With your office letter of May 24, 1899, was submitted, with request 
for instructions, five separate reports made by a special agent, in 
accordance with directions given by your office, regarding the cutting 
and removal of timber from surveyed and unsurveyed public lands in 
the State of Idaho, in March and April last, by contractors, for use in 
the construction of the Kootenai Valle}^ Railroad. The amount of the 
cutting involved in the several reports aggregate 735,000 feet of 
timber and 31,025 railroad ties. 

Articles of incorporation and proofs of the organization of said 
Kootenai Valley Railroad Company were submitted to this Depart- 
ment by your office November 5, 1898. They were returned to 3^our 
office for correction and were again transmitted to the Department 
March 24, 1899, and were accepted as sufficient March 29, 1899. 

According to the articles of incorporation this company was 
organized for the purpose of building a railroad in the State of Idaho 
from Bonners Ferry, on the line of the Great Northern Railway, in a 
northerly direction to the international boundary. A map showing 
the line of location of the proposed road was filed in the local land office 
at Coeur d'Alene, Idaho, on November 23, 1898. No action appears to 
have been taken upon said map by jonv office, looking to the approval 
of the same, under the fourth section of the act of March 3, 1875. 
(18 Stat., 482.) 

In 3^our office letter it is stated that the material, cut as aforesaid — 

has virtually been taken possession of by the Government, on the ground that it was 
unlawfully procured from public lands, and the railroad company have been thereby 
delayed and obstructed in the building of the road, which will develop and open up 
to settlement an important section of the country— 

but the Department is verball}^ informed b}^ Mr. Thomas R. Benton, 
the attorney for the company, that it is his understanding that all 
timber and ties referred to in said reports are in possession of the 
company, except 7,000 ties which arc the subject of the agent's report 
of May 12, 1899, the same having been cut from and being now upon 
what will be, when survey is accepted, sec. 2, T. 62 N., R. 2 E. 

Your office letter submitting said reports states that the main ques- 
tions suggested by the reports are as follows: 

First. Had the company the right, under the act of March 3, 1875 (18 Stat., 482), 
to procure timber from public lands for construction purposes prior to the approval 
or acceptance of a copy of its articles of incorporation, etc., required by the act to 
be filed with the Secretarv of the Interior? 



176 Timber for Railroad Purjposes. 

Second. If the company had such a right, were the timber and ties specified in 
Special Agent Thorp's reports cut by or for said company for actual construction 
purposes? 

Third. Were such timber and ties procured from public lands adjacent to the line 
of the road? 

Relative to the first question, you state: 

I am of the opinion that the position heretofore taken by this office, that a right- 
of-way railroad, duly incorporated and organized as prescribed in the act of March 
3, 1875, has no right to begin construction or to exercise the privileges granted by 
section 1 of said act until a copy of its articles of incorporation and evidence of its 
organization thereunder has been accepted or approved by the Secretary of the 
Interior, is erroneous and not authorized or contemplated by said act. 

******* 

There is no provision in the law which specifically requires the approval of the 
copies of articles of incorporation by this Department, but, even if such a require- 
ment can be implied, the approval of the papers would relate back to date of filing, 
and in the case in question none of the timber or ties was cut until some four months 
after the filing of said papers by the railroad company. 

******* 

In view, however, of the former practice or holdings of this office, that the rights 
of a right-of-way railroad to begin the construction thereof does not attach until after 
the copy of its articles of incorporation and evidence of its organization thereunder 
have been approved by the Department, I feel constrained to refer the entire matter 
to the Department for its consideration and for advisory instructions. 

The question here raised relates to the time when a railroad company 
seeking to secure the benefits of the act of March 3, 1875, becomes 
entitled thereto. This question does not appear to have ever been 
made the subject of consideration by this Department with respect to 
the right of the company to take material, etc., from the public lands 
adjacent to the line of road for the purpose of construction. In the 
case of Dakota Central R. R. Co. v. Downey (8 L. D., 115), it was held 
that the right of way conferred by the act of March 3, 1875, does not 
attach by the filing and acceptance of the company's articles of incor- 
poration and proofs of organization, but when the line of road is 
definitely fixed, either by actual construction or the filing of the map 
of location, as provided for in the fourth section of the act. The 
question involved in that case was as to whether a reservation should 
be made in the patent issued on account of an entry made of lands 
crossed by the claimed right of wa3\ 

The act of 1875 grants a right of way across the public land.-- 100 
feet in width on each side of the central line of the road, and also the 
right to take from the public lands adjacent to the line of the road, 
material, earth, stone, and timber necessary for the construction of 
the railroad. So far as these grants may interfere with the rights 
of others claiming the land as settlers or by reason of entry thereof, 
it is clear that, in addition to the filing of the articles of incorporation 
and due proofs of the organization, the railroad company nuist also 
give fixedness to the line of its proposed road, on account of which a 
right is claimed, before the initiation of the adverse claim, in order to 



Timher for Itailroad Purposes. 177 

subject such land to the grant; but this can be done either b}^ the filing 
of maps as provided for in the fourth section of the act, by reason of 
which the company would gain a right in advance of the actual con- 
struction of its road, or by the building of its road. Where, as in the 
matter under consideration, the question is one solely between the 
United States and the compan}^ claiming the benefits of the provisions 
of the act, all that is necessary in order to entitle the company to the 
right to take from the public lands adjacent to the line of its proposed 
road material, earth, stone, and timber necessary for the construction 
thereof is the filing of its articles of incorporation and due proofs of 
organization, as provided for in the first section of the act; for if the 
full privileges of the grant made by the act can be secured b}' the con- 
struction of the road without the previous filing of the map of location, 
as recognized in the case of Washington and Idaho E,. R. v. Coeur 
d'Alene Ey. (160 U. S., 77, 97) and the case of Dakota Central R. R. 
V. Downey (supra), the right to take stone and timber must exist 
before construction, for the use to be made of the material, earth, 
stone, and timber is limited to the construction of the road. 

In the case of United States v. Denver, etc., Ry. (150 U. S., 1, 1-1) 
it was said: 

When an act, operating as a general law, and manifesting clearly the intention of 
Congress to secure public advantages, or to subserve the public interests and welfare 
by means of benefits more or less valuable, offers to individuals or to corporations as 
an inducement to undertake and accomplish great and expensive enterprises or works 
of a quasi public character in or through an immense and undeveloped public domain, 
such legislation stands upon a somewhat different footing from merely a private 
grant, and should receive at the hands of the court a more liberal construction in 
favor of the purposes for which it was enacted. (Bradley v. New York and New 
Haven Railroad, 21 Conn., 294; Pierce on Railroads, 491.) 

The articles of incorporation and due proofs of organization are 
required by the act to be filed with the Secretary of the Interior, and 
where the same are found sufiicient to identify the compan}^ as a 
beneficiary of the grant and are accepted by the Secretary of the 
Interior, the right acquired by the acceptance will relate back to 
the time of the presentation of the articles of incorporation and proofs 
of organization, so as to protect the company in any subsequent taking 
of material, earth, stone, and timber necessary for the construction of 
the road. 

The second question, namely, "Were the timber and ties specified 
in Special Agent Thorp's report cut by or for said company for actual 
construction purposes?" seems to be sufficienth^ answered in that 
portion of 3'our said ofiice letter which states that — 

The second question is answered in full by Special Agent Thorp's reports and the 
affidavits submitted therewith, which seem to conclusively estal)lish the fact that 
the timber and ties specified were procured from public lands solely for the con- 
struction of the Kootenai Valley Railroad. 

21150—03 12 



178 Timber for Railroad Purposes. 

In respect to the third question, namely, "Were such timber and 
ties procured from public lands adjacent to the line of the road 'i " 
your said office letter states that — 

The question as to what are "pubUc lands adjacent to the line of said road," 
which is involved in the third query, has been construed in many conflicting ways 
by the courts and by decisions of this office and the Department, and no definite 
conclusion can be arrived at which will apply, in general, to every case. In my 
opinion, it should apply, in general, to the nearest and most available public lands, 
within a reasonable distance from the line of the road, from which the necessary 
timber can be procured, and it should especially apply to such lands as are within 
such proximity to the road as to be directly benefited by the building of the road, 
by being opened up to settlement and development, to a degree equivalent to the 
value of the timber or other material procured therefrom. Where the lands, how- 
ever, are, while only from 4 to 5 miles from the line of a road, in a direct line, but 
are separated from the road by mountains which it would be impossible to get the 
timber across, and the only way the timber cut from said lands can reach the line of 
road is by a long and circuitous route of some 10 or 12 miles, I am of the opinion 
that such lands can not be considered as ' ' adjacent to the line of the road ' ' within 
the meaning of the act of March 3, 1875. 

With this view of the matter it seems to me that in the case of Hopkins and Reed 
reported by Agent Thorp May 11, 1898, involving 500,000 feet of timber cut from 
what will be, when survey is accepted, sees. 20, 22, and 28, Tp. 62 N., R. 2 E.; in 
the case of Parker Brothers, reported by Agent Thorp May 12, 1899, involving 7,000 
ties cut from what will be, when survey is accepted, sec. 2, Tp. 62 N., R. 2 E., and 
in the case of Jerry Callahan, reported by Agent Thorp May 12, 1899, involving 
235,000 feet of timber cut from what will be^ when surveyed, sec. 18, Tp. 60 N., R. 1 E., 
the lands cut from being over 5 miles distant from the line of the road in a direct line, 
or it being impossible to deliver the timber cut therefrom to the railroad without trans- 
porting it by a long and circuitous route of from 7 to 12 miles, said lands can not be 
considered within the proximity of the line of' the road or within such reasonable 
distance therefrom as to be considered lands "adjacent" to the line of the road, and 
I am of opinion that demand should be made upon the railroad company and its 
contractors for the stumpage value of said material, as innocent trespassers, before 
said timber and ties are delivered to them. 

With regard to the 24,025 railroad ties specified in the remaining two reports of 
Special Agent Thorp, both dated May 13, 1899, as cut from S. J NE. \ sec. 8, Tp. 62 
N., R. IE.; sec. 6, Tp. 63 N., R. 1 E., and on what will be, when surveyed, sees. 7, 
20, 29, and 32, Tp. 64 N., R. 1 E., in which said agent reports that the lands are 
within 1 mile of the line of the road, and the ties have been hauled to and are 
now piled on the right of way, there appears to be no question but what said lands 
are adjacent to the line of the road and [the ties] should be released to said road. 

It appears that the 235,000 feet of timber referred to in the agent's 
report of Ma}- 12 were cut from lands about 10 miles due south of the 
southern terminus of the road, and that the 500,000 feet of timber 
referred to in the agent's report of May 11 were cut from lands almost 
directly east from the southern terminus of the proposed road and 
from 5 to 7 miles distant therefrom. 

In circular of March 3, 1883 (1 L. D. , 699), issued under the act of 
March 3, 1875 (supra), it is stated, in paragraph nimibered 2, that— 

The right granted to any railroad company under this act to take timber or other 
material from the public lands "adjacent to the line of said road" for construction 



Timher fo7' Bailroad Purposes. 179 

purposes is construed to mean that in procuring timber or other material for the 
l^urposes indicated in the act tlie same must be obtained from the public lancis in the 
neighborhood of the line of road being constructed and within the terminal points 
of such roads, if possible. If, however, it should be found that the material required 
in the construction of such road can not be procured from the public lands in the 
neighborhood of and within the terminal limits of such road, then it is permitted 
that such company may obtain the material required outside the terminal limits of 
the road under construction; such material, however, to be taken from such points 
as are most accessible and nearest to the terminal limits thereof. 

Under this construction of the act it would be possible to go beyond 
the termini of the road in securing timber for construction if it could 
not be found laterally adjacent to and within the termini of the pro- 
posed road. 

It does not appear, however, that an}' inquiry has been instituted b}'^ 
your office with a view of ascertaining whether necessity existed foi* 
the cutting of timber beyond the terminus at Bonners Ferry. 

As to the timber and ties cut from lands laterall}' adjacent to the 
line of road, it is stated in your said office letter that a portion, espe- 
cially the 7,000 ties cut from what wdll be, when surveyed, sec. 2, Tp. 
62 N., R. 2 E., and the timber cut to the east of the road at its terminus 
at Bonners Ferry, were cut from lands "separated from the road by 
mountains which it would be impossible to get the timber across, and 
the only way the timber cut from said lands can reach the line of road 
is by a long and circuitous route of some 10 or 12 miles." Your office 
is of opinion that these lands are not "adjacent to the line of the road" 
within the meaning of the act of March 3, 1875. 

It is not stated that there is any nearer available timber that might 
be used by the company; and when the nature of the country to be 
traversed b}" the proposed road is considered, together with the evident 
purpose to use the streams as a means to carr}^ the timber to the road, 
thus saving hauling, it is the opinion of this Department that these 
lands are adjacent to the line of road, notwithstanding the}- ma}' be 
"separated from the road by mountains." 

The reports, together with accompanying papers, are herewith 
returned for your further consideration and action in the light of the 
construction herein given to the act. 

RAILROAD RIGHT OF WAY— GRAVEL BED—COXSTRUCTION. 

Gkeat Northern Ravy. Co. 

(14 L. D., 566.) 

Assistant Attorney- General Shields to the Secretary of the Interior, 

May 13, 1892. 

The use of material under the general right-of-way act of March 3, 
1875 (18 Stat., 482), and the special act of February 15, 1887 (2i Stat., 
402), is limited to construction, and does not include the repair or 



180 Timher for Railroad Purposes. 

improvement of a railroad. The period of original construction ceases 
when the road is open to the public for general use. 

(This opinion was adopted by the Secretary of the Interior May 17, 
1892.) 

RAILROAD COMPANIES CAN NOT PROCURE TIMBER FROM PUBLIC 
MINERAL LANDS UNDER THE ACT OF JUNE 3, 1878 {£0 STAT., 88). 

The act of June 3, 1878 (20 Stat., 88), authorizing the cutting of 
timber for building, agricultural, mining, and other domestic purposes, 
from public lands which are known to be mineral and not subject to 
entry under existing laws of the United States except for mineral 
entry, expressly provides that ''the provisions of this act shall not 
extend to railroad corporations." 

Railroad companies can not, accordingl}^, take timber from public 
mineral lands for any of the purposes enumerated in said act. 

This prohibition does not, however, operate to interfere, in any 
wise, with their taking timber from such lands for the purposes 
allowed in the act of March 3, 1875 (18 Stat., 482), and the several 
land-grant acts authorizing railroad companies to take public timber 
for construction purposes. 

United States v. Eureka and P. R. Co. 

Circuit court, district of Nevada (40 Fed. Rep., 419). 

Public Lands — Timber — Cut for Use by Railroad Company. 

The defendant, a railroad corporation, purchased for use upon its locomotives 
and cars wood severed from the public mineral lands. Held, that such purchase 
and use were unlawful, and that the United States could recover from defendant 
the value of the wood so severed and purchased by it. 

The United States «. O. A. Dodge et al. 

District court, first judicial district, Nez Perces County, Idaho Territory. 

Gentleman of the Jury: The defendants are charged with will- 
fully and unlawfully cutting and removing certain timber from the 
lands of the United States. 

I instruct you that the timber growing upon the lands of the United 
States is a part of the land and the propert}'^ of the United States, and 
no person has the right to cut such timber and appropriate the same 
to his own use without some express provision of law authorizing him 
to do so. 

Some evidence has been introduced tending to show that certain pre- 
emption claims had been located upon the land from which the timber 
is alleged to have been cut. 

I instruct you as a matter of law that a preemptor has no right to 
cut and remove the timber from his claim except for the purpose of 



Timber for Railroad Purposes. 181 

preparing the same for cultivation, and no one has the right to purchase 
timber removed from a preemption claim which the preemptor cut for 
purposes other than the preparation of the claim for cultivation and 
for the residence of the preemptor. If a person do so he is a trespasser, 
and if he do so, knowing that it has been cut ofl" from the land for the 
purpose of sale merely and not the genuine purpose of improving the 
claim, his trespass is willful. 

To explain more fully, if a preemptor having a claim covered with 
timber desire to build a house or a fence, he may cut timber from any 
part of such claim suitable for such purposes. So if he desire to plow 
and seed 20 acres, he may cut and remove all the timber on said 20 
acres and may sell the wood or logs cut therefrom; so he may do 
from the whole claim if he wishes to cultivate the whole; but he is not 
at libert}^ to cut and remove timber from any part of said land simply 
as a matter of converting the same into money before he has paid for 
it and not in good faith for the purpose of improving his claim and 
preparing it for cultivation. If he do so, the preemptor so cutting the 
timber is a trespasser; and if others buy it of him, knowing the facts, 
they also are trespassers and liable for the value of the timber. 

I further instruct you that in case of such a trespass the fact that the 
United States afterwards patented said land to other persons does not 
relieve those committing the trespass from their liability for their 
wrongful acts in cutting the timber. 

It is the policy of the Government to preserve the timber growing 
upon such of the public lands as are lit for cultivation for the use of 
those who shall settle upon and purchase it. 

There are, however, some portions of the public domain which are 
more valuable for the mineral that is in the soil than for agricultural 
purposes. Such lands are called mineral lands, and the Government 
does not sell them except in small quantities for mining purposes. 

From this mineral land an}^ person may cut and remove the timber 
for domestic purposes. 

The defendants claim that the timber in question was cut from min- 
eral lands for domestic and other lawful purposes. I instruct you that 
in actions of this kind, when a person is proven to have cut timber from 
the public domain, the law holds him liable for the value of such timber 
unless he shows in defense that he cut the same under such circum- 
stances as authorized him to do so under the laws of the United States. 

In this case the defendants claim that the land is mineral land. By 
mineral lands is meant such land as is more valuable for mining than 
for agricultural purposes, and the burden of proving its mineral char- 
acter devolves upon the defendants; so also is the burden on the defend- 
ants of proving that the}" cut the same for domestic or other lawful pur- 
pose. It is also claimed by defendants that the timber cut was for the 
use of the Northern Pacific Railroad and used in the construction of said 



182 Timher for Railroad Purposes. 

road. I instruct you that the Northern Pacific Railroad during the 
period of its construction had the right to so much of the timber upon 
the public lands adjacent to it as was needed to construct it. 

If the defendants took a contract from said railroad to furnish a cer- 
tain bill of lumber, and in pursuance to said contract they cut the 
timber in question, they would be justifiable in doing so. If, however, 
they had a sawmill and lumber yard, and sold lumber to the railroad 
company as they did to the general public, without said lumber having 
been specially procured for their use, such purchase would not excuse 
defendants from their liability for lumber cut on the public domain. 

If the railroad company notified defendants, either verball}^ or in 
writing, that they desired lumber of a certain description for their 
road and they procured such lumber for them, such an order from the 
company filled by defendants would justify them cutting the same from 
the public domain, but it would not excuse their going beyond the 
orders and stocking a lumber yard for commercial purposes generally 
from timber cut from the public domain. 

In considering whether this timber was cut for the railroad company 
the question of whether the land is mineral or nonmineral is not impor- 
tant, as under the charter of the road they might cut from either. 

The first question, then, is: Did defendants cut or cause others to cut 
or purchase the timber of others who unlawfully cut it? 

Second. Was the land from which the timber was cut mineral lands? 

Third. If the defendants cut the timber, or purchased it from others 
having cut it, was it cut for the Northern Pacific Railroad or for 
domestic purposes? 

If you find that the defendants cut or purchased the timber, and the}' 
themselves testify that they did purchase a certain amount, and that 
they did so for the railroad company, under the instructions that I have 
given you you ought to find for the defendants. 

If you find from the evidence that the defendants cut or purchased 
the timber from those who cut it, and that said cutting was wrongful, 
you ought to find for the plaintiff and determine the amount cut and 
the value of it. 

In determining the value, if you find that defendants acted in good 
faith, without intending to defraud the Government, but supposing 
they had a right to buy it, you should find the value of it to be the same 
as it was immediatel}^ before it came into their possession. 

If you find that the defendants bought the logs of another who 
wrongfully cut them, knowing that they were wrongfully cut, you 
should find the damage to be the value of the logs after they were 
converted into lumber. 



Timher within Granted Limits of N. P. R. R. Co. 183 

TIMBER ON LANDS WITHIN LIMITS OF THE GRANT TO THE NORTH- 
ERN PACIFIC RAILROAD COMPANY. 

United States v. William Childers. 

District court, district of Oregon (8 Sawyer, 171). 

Grant to the Northern Pacific Railway Company. 

By the act of July 2, 1864 (13 Stat., 365), the odd-numbered sections along the 
line of the Northern Pacific Railway Company for 40 miles on either side of the 
line in the Territories, and 20 miles in the States, are set apart and devoted to 
the construction of the road of said corporation; but said act is not a present 
grant of said lands to said corporation, but only in effect an agreement or pro- 
vision that the same shall be conveyed to it absolutely, when and as fast as any 
25 miles of said road is constructed and accepted by the United States; and in 
the meantime the legal title to the unearned and unpatented sections is in the 
United States, who may therefore maintain legal ^proceedings against anyone 
that unlawfully cuts timber thereon. 

Northern Pacific R. Co. v. Hussey. 

Circuit court of appeals, ninth circuit (61 Fed. Rep., 231). 

Railroad Land Grants — Unsurveyed Lands — Tenants in Common. 

A land-grant railroad company is not a tenant in common with the United 
States in respect to lands which lie within its grant limits, opposite the completed 
line, but which have not yet been surveyed, so aa to render the odd sections 
belonging to the company distinguishable from the even sections reserved to the 
Government. 

Same — Enjoining Trespassers. 

The company has, however, such an interest in the lands as will entitle it to 
maintain alone (the Government having refused to join with it) a suit to enjoin 
trespassers who are cutting timber from the lands in such manner that the 
denuded portions will fall within the odd as well as the even sections when the 
survey is made. 

United States v. Ordway and others. 
Circuit court, district of Oregon (30 Fed. Rep., 30). 

Public Lands — Cutting Timber — Action for Damages — Partial Defense. 

A partial defense to an action or in mitigation of the damages claimed therein 
ought to be pleaded in the answer as a distinct defense; and an allegation that 
the defendants cut and removed certain timber from alleged public land, believ- 
ing that it was the land of the Northern Pacific Railroad Company, from which 
they had a license, is such a defense, where the damages claimed in the comjalaint 
are based, not only on the value of the timber in the standing tree, but also the 
value bestowed on the same in converting it into lumber and putting it into 
market. * 

Same — Grant to the Northern Pacific Railroad Company. 

The grant of certain odd sections of the public lands to the Northern Pacific 
Railway Company, by the act of July 2, 1864 (13 Stat., 365), does not give the 
corporation any such present right to, or interest in, any one of such sections as 
authorizes it to waste the same by disposing of the timber thereon before it is 



184 Tlmher within Granted Limits of N. P. B. R. Co. 

earned by the construction of the section of the road adjacent and opposite 
thereto. (The case of the U. S. v. Childers, 8 Sawy., 171, 12 Fed. Rep., 586, dis- 
tinguished from Buttz v. Northern Pac. Ry. Co., 7 Sup. Ct. Rep., 100, and 
followed.) 
Public Lands — Earned Lands. 

On the construction and acceptance of any section of the road of tlie Northern 
Pacific Railway Company, the coterminous odd sections vest absolutely in the 
corporation, and thereafter the patent therefor may be considered as having 
issued. 

United States v. Ordway and others. 

Circuit court, district of Oregon (30 Fed. Rep., 36). 

Deady, J. : 

This case was argued and submitted witli the foregoing one. It is 
alleged in the complaint that on May 1, 1883, and divers days since, the 
defendants cut and removed from the public lands of the United States, 
to wit, the west \ of section 13 of township 3 north, of range 9 east, 
of the Willamette meridian, situate in Washington Territory, 600 
trees, and cut the same into cord wood, to wit, 3,000 cords, of the value 
of 17,500, and wrongfully converted the same to their own use, to the 
damage of the plaintiff, IT, 500. The defenses are similar to those 
made in the foregoing case, to wit: Denials; a license from the North- 
ern Pacilic Railway Company; and the cutting was done in good faith. 
In the second defense it is alleged that the premises are within the 
limits of the grant to the Northern Pacific on the line of its general 
route between Portland and Wallula Junction, and that acting under 
a license from said corporation they cut and removed from said half 
section not more than 1,800 cords of wood, of no greater value when 
standing in the tree than 10 cents a cord. 

The demurrer to the defenses of good faith is overruled, and sus- 
tained to that of license from the Northern Pacific. 

RIGHT OF THE UNITED STATES TO RECOVER FOR TRESPASS COM- 
MITTED ON UNSURVEYED LANDS WITHIN THE LIMITS OF THE 
NORTHERN PACIFIC RAILROAD GRANT. 

Department of Justice, 

Washmgton, D. C, January 30, 1897. 
Sir: I have the honor to acknowledge the receipt of your letter of 
the 6th instant, inclosing a copy of a communication dated April 29, 
1896, addressed to the Commissioner of the General Land Office by 
Messrs.* Britton & Gray, of this city, attorneys for the Northern 
Pacific Railway' Company, relating to '"extensive timber trespassing 
upon unsurveyed lands in the States of Montana, Idaho, and Washing- 
ton, lying within the limits of the Northern Pacific Railroad grant." 
Messrs. Britton & Gray state that the ""timber thieves have been par- 
ticularly active upon this class of lands, feeling assured that the United 



Tirnher witliin Granted Limits of JV. P. M. R. Co. 185 

States Goveriunent and the railroad company would never join in an 
action against them," and suggest that these cases be prosecuted 
jointl}^ by the United States and the railroad compan}^, the proceeds to 
be equitably distributed, or that suits be brought b}- the district attor- 
ne}^ in behalf of the United States and Mr. F, M. Dudley, or other 
attorney of the railroad company, in its behalf, under the agreement 
that the expenses and recoveries of suits might be shared in equal pro- 
portion by the Government and the railroad company. 

In your letter above referred to, after citing decisions bearing upon 
the questions involved, you express the opinion that the United States 
is authorized, b}" reason of its legal relation to the lands, to sue alone 
and stand in judgment upon the issues presented by the company", and 
state that "if the view of law herein presented is not concurred in it 
is recommended, in the alternative, that suits be prosecuted jointly 
with the company, as requested by its counsel." 

By the act of July 2, 1864 (13 Stats., 365), granting alternate sec- 
tions of lands to the Northern Pacific Railroad Company to aid in the 
construction of a railroad and telegraph line from Lake Superior to 
Puget Sound, it is provided that Congress may at any time, having 
due regard for the rights of the Northern Pacific Railroad Company, 
add to, alter, amend, or repeal that act. 

And in 1870 (16 Stats., 305), Congress provided that before any 
land granted to the Northern Pacific Railroad Company should be con- 
veyed to any person entitled thereto under any act incorporating or 
relating to said company, the cost of surveying, selecting, and convey- 
ing the same should first be paid into the Treasury of the United 
States. 

The land lying in Montana, Idaho, and Washington, claimed by the 
railroad company, has never been surveyed b}- the Government, but 
the records of the General Land Office show, as stated by the Commis- 
sioner, that the railroad compan}^ upon their own private survey of 
the lands, have scaled the timber cut from what the}^ designate as odd 
numbered sections and have received pavment therefor at the rate of 
%\ per thousand feet. 

In Railway Co. v. Prescott (16 Wall., 603) and Railway Co. ^). 
McShane (22 Wall., 114), decided in 1872 and 1871, respectively, the 
Supreme Court held that taxes levied on lands granted b}- Congress to 
aid in building the roads (Kansas Pacific and Union Pacific) were void 
by reason of the fact that neither the companies nor anyone for them 
had paid to the United States the costs of surveying those lands by the 
Government. 

In Northern Pacific Railroad Co. v. Traill County (115 U. S., 609), 
decided in December, 1885, the Supreme Court held that the clause 
authorizing Congress to add to, alter, or amend or repeal the act of 
1861 clearly conferred this power on Congress, especiall}^ when exer- 
cised, as in this instance, before the company had built a mile of road 



186 Forfeited Railroad Lands — Prvvate Railroads. 

or earned an acre of land, or in any other manner secured an equitable 
right to the lands. 

In Railway Co. v. Prescott the court added: 

Two important acts remained to be done, the failure to do which might wholly 
defeat the company's title. One of these was payment of the costs of surveying. 

I am therefore inclined to think that the United States has such 
title to the lands mentioned as will enable it to sustain an action for 
timber trespass. 

I have advised the United States attorneys for Montana, Idaho, 
and Washington of the conclusion reached and, as suggested in your 
letter, have directed them to take such action on behalf of the Gov- 
ernment as will result in the recover}^ of the timber capable of being 
identified as having been removed from lands embraced within the 
lateral limits of the grants within those States, and of damages where 
that remedy is appropriate. 

Very respectfully, Judson Harmon, 

Attorney- General. 

The Secretary of the Interior. 



RIGHT OF UNITED STATES TO RECOVER FOR TIMBER CUT FROM LANDS 
GRANTED TO A STATE FOR RAILROAD PURPOSES, WHICH SUBSE- 
QUENTLY REVERTED TO THE GOVERNMENT FOR FAILURE OF CON- 
DITIONS. 

United States v. Loughrey. 

Error to the circuit court of appeals for the seventh circuit (172 U. S., 206). 

Under the act of June 3, 1856 (chap. 44, 11 Stat., 21), the State of Michigan took the 
fee of the lands thereby granted, to be thereafter identified, subject to a condi- 
tion subsequent that if the railroad to aid in whose construction they were 
granted should not be completed within ten years the lands unsold should 
revert to the United States, but until proceedings were taken by Congress to 
effect such reversion the legal title to the lands and the ownership of the timber 
growing upon them remained in the State, and the United States could not main- 
tain an action of trespass against a person unlawfully entering thereon and cut- 
ting and removing timber from the land so granted; and timber so cut and 
separated from the soil was not the property of the United States, and did not 
become such after acquisition of the lands by reversion; and the United States 
could not avail themselves of the rule that in an action of trover a mere tres- 
passer can not defeat the plaintiff's right to possession by showing a superior 
title in a third person, without showing himself in a privity with, or connect- 
ing himself with, such third person. 

RAILROADS CONSTRUCTED FOR PRIVATE USE NOT ENTITLED TO USE 

PUBLIC TIMBER. 

In constructing a railroad not for use and benefit of the general pub- 
lic, but for private use, the entering upon public lands and destroying 
timber thereon in the clearing of a right of way, and in digging, grad- 



Use of Thnhet' hy TelegrapTi Compa/nies. 187 

ing, and excavating for a roadbed, the defendants held to be guilty of 
trespass, and the United States clearly entitled to recover damages 
from them. * * * 

The judge in his charge to the jury affirming "that it was agreed by 
both great parties -that the public lands and the timber thereon must 
be protected for the future as well as the present generation." (See 
Land Office Report for 1889, p. 291; case of U. S. v. O. S. Burdett and 
A. Rosenfield, eastern district of Louisiana, Judge E. C. Billings, May 
term, 1889.) 

USE OF PUBLIC TIMBER BY TELEGRAPH COMPANIES. 

(Act of July 24, 1866; 14 Stat., 221; Sec. 5264, Rev. S.) 

£e it enacted hy the Senate and House of Representatives of the United 
States of America in Congress assembled., That any telegraph company 
now organized, or which may hereafter be organized under the laws of 
any State in this Union, shall have the right to construct, maintain, 
and operate lines of telegraph through and over an}- portion of the 
public domain of the United States, over and along an}^ of the military 
or post roads of the United States which have been or may hereafter 
be declared such b}" act of Congress, and over, under, or across the 
navigable streams or waters of the United States: Provided., That such 
lines of telegraph shall be so constructed and maintained as not to 
obstruct the navigation of such streams and waters, or interfere with 
the ordinary travel on such military or post roads. And any of said 
companies shall have the right to take and use from such public lands 
the necessary stone, timber, and other materials for its posts, piers, 
stations, and other needful uses in the construction, maintenance, and 
operation of said lines of telegraph, and may preempt and use such 
portions of the unoccupied public lands subject to preemption through 
which its said lines of telegraph may be located as ma}^ be necessary for 
its stations, not exceeding forty acres for each station; but such stations 
shall not be within fifteen miles of each other. 

******* 

Sec. 4. Andhe it farther enacted., That before any telegraph company 
shall exercise an}^ of the powers or privileges conferred by this act, 
such companj^ shall file their written acceptance with the Postmaster- 
General of the restrictions and obligations required by this act. 

The act of Juh" 24, 1860, authorizing the construction and mainte- 
nance of telegraph lines through and over the public domain, and 
along military or post roads of the United States, contains no grant 
or authority for the construction and maintenance of telephone lines. 
(Opinion of Assistant Attorne3"-Greneral for the Interior Department, 
July 1, 1899, 29 L. D., 1.) 



188 Teleplione Companies — Military Posts. 

Commissioner Hermann to the Secretary of the Interior^ January 

^7, 1900. 

I have the honor to acknowledge receipt, by reference from the 
Department "for consideration, appropriate action, and report," etc., 
of a communication dated January 3, 1900, from Mr. John Mussel- 
man, manager of the Black Hills Telegraph and Telephone Company, 
requesting that the company be allowed to cut and clear the brush and 
growth of .young timber from the right of way of its telephone lines 
within the Black Hills Forest Reservation. 

The petitioner states that these telephone lines have been in constant 
operation for the past ten to fourteen 3^ears, and that the brush and 
undergrowth interfere with their use for communication. 

I have respectfully to state that under departmental decision of 
July 1, 1899 (29 L. D., 1-7), based upon the decision of the Supreme 
Court in the case of the The Cit}^ of Richmond v. The Southern Bell 
Telephone and Telegraph Company (174 U. S.), telephone companies 
have no statutory right to construct their lines over the public lands, 
except in so far as they ma}^ build under a right-of-way grant to a 
railway company where the statute authorizes the construction and 
maintenance of a telephone line upon said right of way. 

PROCURING WOOD FROM PUBLIC LANDS FOR USE OF MILITARY 

POSTS. 

Department of the Interior, 

Washi?i{/to>i, August 9, 1886. 

Sir: I have the honor to acknowledge the receipt of your letter of 
the 5th instant transmitting a cop}'' of a letter, dated the 1st ultimo, 
from Joel R. Slack, who made a contract with the Government for 
delivering at Whipple Barracks, Ariz., 1,000 cords of wood, under the 
supposition he would be allowed to cut the wood from the public lands; 
a copy of notice to Slack from T. M. Bowers, special agent of the Gen- 
eral Land Office, to desist from cutting wood on the public domain and 
requesting, in accordance with the recommendation of the Quarter- 
master-General, that "authority be given to cut wood on vacant lands 
of the public domain for the use of the Army," and stating, in passing, 
the remark of the chief quartermaster of the Department of Arizona, 
" that unless the wood required to supply the army on the frontier 
can be cut hy contractors on vacant public lands belonging to the 
United States it will be an expensive item in that department to the 
Army." 

There is no objection to allowing wood to be taken from the public 
domain for the use of the Arm}^ under proper regulations when cir- 
cumstances render it necessary. The decision hj the Court of Claims 
in the case of Nannie Spencer, administratrix of Warren Faver, grants 



Forest Reservations — Mining Claims in PiJces Peak Forest Reserve. 189 

this, and says that "the proper officers might lawfully emplo}^ indi- 
viduals to cut wood from the public land for the use of the military 
force so situated;" but the decision adds, "in such case the persons 
so employed would be paid not for the wood, hut for cutting and 
hauling it.'''' 

As requested in 3"our communication, permission is granted to cut 
wood on the public domain convenient to Whipple Barracks for the 
use of said post in accordance with the decision of the Court of Claims 
herein referred to; but the persons furnishing the wood should be paid 
for its cutting and delivery alone, and not for the value of the timber, 
as that belongs to the United States. 

Very respectfully, L. Q. Q>. Lamar, 

Secretary. 
The Secretaky of War. 

FOREST RESERVATIONS. 

(Act of Mar. 3, 1891; 26 Stet., 1095.) 

Sec. 24. That the President of the United States may, from time to 
time, set apart and reserve, in any State or Territory having public 
land, bearing forests, in any part of the public lands wholly or in part 
covered with timber or undergrowth, whether of commercial value or 
not, as public reservations, and the President shall, by public procla- 
mation, declare the establishment of such reservations and the limits 
thereof. 

The laws, regulations, and decisions relating to timber upon lands 
within public forest reserves are contained in a compilation issued by 
the General Land Office on November 6, 1900. 

EXTENT OF TIMBER PRIVILEGES UNDER ACT OF FEBRUARY 20, 1896. 

(29 Stat., 11.) 

Com7nissio7ier of the General Land Office to the Secretary of the 
Interior, October 16, 1896.^ in the timher trespass case of Kendall, 
Toionsend., and Walter. 

* ***** * 

Inasmuch as the act of February 20, 1896 (29 Stat., 11), opening the 
Pikes Peak Forest Reserve for the location of mining claims, confines 
the felling and removing of timber from mining claims to "actual 
mining purposes in connection with the particular claim from which 
the timber is felled or removed," it appears that Townsend and Walter, 
in cutting timber on their claims for sale for the purpose of raising 
money for the development of the claims, exceeded the privileges 
allowed in said act. 

A reasonable construction of the wording of this act appears to con- 



190 Act of March 3, 1891 {26 Stat., 1093). 

fine the use of timber on such claims within a limit directly similar 

to that defined by the United States Supreme Court in dealing with the 

question whether timber might be taken from an unperfected homestead 

claim and sold for the purpose of expending the money derived from 

the sale in improvements on the claim; upon which point it was held 

that while, perhaps, timber might be taken from such claims to be 

exchanged for timber or lumber to be applied direct to improvements 

thereon, yet it could not be sold to raise money with which to make 

improvements on the land. (Case of Shiver v. United States, 159 U. 

S., 491.) 

It accordingly appears that the timber taken from said mining 

claims for use as stated was procured in trespass. 

* * . * * * * * 

Approved by the Secretary of the Interior November 5, 1896. 

THE SECRETARY OF THE INTERIOR AUTHORIZED TO PRESCRIBE 
RULES AND REGULATIONS GOVERNING THE USE OF PUBLIC 
TIMBER. 

[Act of Mar. 3, 1891; 26 Stat., 1093.] 

AN ACT to amend section eight of an act approved March third, eighteen hundred 
and ninety-one, entitled "An act to repeal timber-culture laws, and for other 
purposes." 

Be it enacted hy the Senate and House of Hepresentatives of the United 
States of America in Congress assemhled., That section eight of an act 
entitled "An act to repeal timber-culture laws, and for other pur- 
poses," approved March third, eighteen hundred and ninety-one, be, 
and the same is hereby, amended so as to read as follows: 

"Sec. 8. That suits by the United States to vacate and annul any 
patent heretofore issued shall only be brought within five years from 
the passage of this act, and suits to vacate and annul patents hereafter 
issued shall only be brought within six years after the date of the issu- 
ance of such patents. And in the States of Colorado, Montana, Idaho, 
North Dakota, and South Dakota, Wj^oming, and the District of Alaska, 
and the gold and silver regions of Nevada and the Territory of Utah, 
in any criminal prosecution or civil action by the United States for a 
trespass on such public timber lands, or to recover timber or lumber 
cut thereon, it shall be a defense if the defendant shall show that the 
said timber was so cut or removed from the timber lands for use in such 
State or Territory by a resident thereof for agricultural, mining, man- 
ufacturing, or domestic purposes, under rules and regulations made 
and prescribed by the Secretary of the Interior, and has not been trans- 
ported out of the same; but nothing herein contained shall operate to 
enlarge the rights of anj^ railway companj^ to cut timber on the public 
domain, provided that the Secretary of the Interior may make suitable 
rules and regulations to carry out the provisions of this act; and he 



Act of March 3, 1891 {26 Stat., 1093)— Beg illations. 191 

may designate the sections or tracts of land where timber may be cut; 
and it shall not be lawful to cut or remove any timber except as may 
be prescribed b}- such rules and regulations; but this act shall not 
operate to repeal the act of June third, eighteen hundred and seventy- 
eight, providing for the cutting of timber on mineral lands." 

The above act of March 3, 1891 (26 Stat., 1093), was made appli- 
cable to the Territories of New Mexico and Arizona b}^ the act of 
February 13, 1893 (27 Stat., J:44), and to the States of California, 
Oregon, and Washington by the act of March 3, 1901 (31 Stat., 1436). 

CIRCULAR. 
(29 L. D., 572.) 

RULES AND REGULATIONS GOVERNING THE USE OF TIMBER ON NON- 
MINERAL rUBLIC LANDS IN CERTAIN STATES AND TERRITORIES UNDER 
THE ACT OF MARCH 3, 1891 (26 STAT., 1093), AS EXTENDED BY THE 
ACT OF FEBRUARY 13, 1893 (27 STAT., 444). 

Department of the Interior, 

General Land Office, 

Washington., D. C, Fehniary 10, 1900. 
By virtue of the power vested in the Secretary of the Interior b}' the 
act of March 3, 1891 (26 Stat. , 1093), the following rules and regulations 
are hereby prescribed: 

1. The act, so far as it relates to timber on public lands, as extended 
by the act of February 13, 1893 (27 Stat., 444), applies only to the 
States of Colorado, Montana, Idaho, North Dakota, South Dakota, 
Wyoming, Nevada, and Utah and the Territories of Arizona and New 
Mexico. The act originally extended to the district of Alaska, but in 
that respect it has been superseded by section 11 of the act of May 14, 
1898 (30 Stat., 409), under which other and separate regulations are 
prescribed for the district of Alaska. 

2. The intention of the act of March 3, 1891, is to enable settlers 
upon public lands and other residents within the States and Territories 
above named to secure from public timber lands timber or lumber for 
agricultural, mining, manufacturing, or domestic purposes, for use in 
the State or Territory where obtained, under rules and regulations to 
be made and prescribed hj the Secretaiy of the Interior. 

3. Settlers upon public lands and other residents of the States and 
Territories above named may procure timber free of charge from unoc- 
cupied, unreserved, nonmineral public lands within said States and 
Territories, strictly for their own use for firewood, fencing, building, 
or other agricultural, mining, manufacturing, or domestic purposes, 
but not for sale or disposal, nor for use by other persons, nor for export 
from the State or Territory where procured. The cutting or removal 



192 Regulations under Act March 3, 1891 {26 Stat., 1093). 

of timber or lumber to an amount exceeding* in stumpage value $50 in 
an}" one year will not be permitted, except upon application to the 
Secretary of the Interior and after the granting- of a special permit. 
Except as above provided, it is not necessary for actual residents to 
secure permission to take timber from public lands in said States and 
Territories for the purposes aforesaid. The exercise of such privilege 
is, however, subject at all times to supervision by the Department with 
a view to such restriction as may be deemed necessar3\ 

4. In cases where qualified persons are not in position to procure 
timber from the public lands themselves, it is allowable for them to 
secure the cutting, removing, sawing, or other manufacture of the tim- 
ber through the medium of others upon an agreement with the parties 
thus acting as their agents that they shall be paid a sufficient amount 
only to cover their time, labor, and other legitimate expenses incurred 
in connection therewith, exclusive of any charge for the timber itself, 
but no person, whether acting for himself, as an agent for another, or 
otherwise, will be permitted to cut or remove in an}^ one j^ear timber 
or lumber to an amount exceeding in stumpage value $50, except upon 
application to the Secretary of the Interior, and upon the granting of 
a special permit. 

5. The uses specified in section 3 of these rules and regulations con- 
stitute the only purposes for which timber may be taken from public 
lands in said States and Territories under this act. 

6. The cutting and removing of timber, free of charge, under said 
act of March 3, 1891, is confined to unreserved, unoccupied, nonmin- 
eral public lands in the States and Territories named therein, inas- 
much as the act specifically provides that the same shall not operate to 
repeal the act of June 3, 1878 (20 Stat., 88), which makes provision, in 
said States and Territories, for the free cutting of timber on public 
lands that are known to be of a strictly mineral character for the uses 
named in said act. 

7. It is further provided in said act of March 3, 1891, that "nothing 
herein contained shall operate to enlarge the rights of any railway com- 
panj^ to cut timber on the public domain." Consequently no timber 
may be cut or taken under this act from public lands either b}^ or for 
the use of anj^ railroad company. 

8. Section 2461, United States Revised Statutes, is still in force in 
the States and Territories herein named, and its provisions ma}' be 
enforced against any person or persons who cut or remove, or cause 
or procure to be cut or removed, or aid or assist or are employed in 
cutting or removing, any timber from public lands therein, except as 
allowed by law. 

9. The Secretary of the Interior reserves the right to revoke the 
privileges granted, in any cases wherein he has information that per- 
sons are abusing the same, or when it is necessary for the public good. 



Act of February 13, 1893 (:37 Sfaf., 4U)- 1^3 

10. All rules and regulations heretofore prescribed under said act 
of March 3, 1891, relating to the use of timber on public lands in the 
above-named States and Territories, are hereby revoked. 

W. A. Richards, 

Acting Comndssioner. 
Approved, February 10, 1900. 
E. A. Hitchcock, 

Secretary. 



[Act of Feb. 13, 1893; 27 Stat., 444.] 

AN ACT to extend the provisions of section eight of the act entitled "An act to 
repeal timber-culture laws, and for other purposes," approved March third, 
eighteen hundred and ninety-one, concerning prosecutions for cutting timber on 
public lands to Wyoming, New Mexico, and Arizona. 

Be it enacted hy the Senate and House of Representatives of the 
United States of America in Congress assemhled. That section eight of 
the act entitled "An act to repeal timber-culture laws, and for other 
purposes,"" approved March third, eighteen hundred and ninety-one, as 
amended b}^ an act approved March third, eighteen hundred and ninetj- 
one, chapter five hundred and fifty-nine, page ten hundred and ninety- 
three, volume twenty-six, United States Statutes at Large, be, and the 
same is hereby, amended as follows: After the word "Wyoming," in 
said amended act, insert the words "New Mexico and Arizona." 

CIRCULAR. 

(SOL. D., 542.) 

Department of the Interior, 

General Land Office, 

Washington, D. C, March 22, 1901. 
To special agents of the General Land Office. 

Gentlemen: The act of Congress approved March 3, 1901 (31 
Stats., 1-136), provides "That section eight of the act entitled 'An act 
to repeal timber-culture laws, and for other purposes,' approved 
March third, eighteen hundred and ninety-one, as amended bj^ an act 
approved March third, eighteen hundred and ninety-one, chapter five 
hundred and fiftj^-nine, page ten hundred and ninety-three, volume 
twenty-six. United States Statutes at Large, be, and the same is 
hereby, amended as follows: After the word ' Nevada,' in said amended 
act, insert the words 'California, Oregon, and Wa.sliington.' " 

This act extends to residents of the States of California, Oregon, and 
Washington the privilege of taking timber from public lands in said 
States under the provisions of said act of March 3, 1891. 

In taking such timber the rules and regulations contained in the cir- 
cular of February 10, 1900 (29 L. D., 572), prescribing "rules and 
21150—03 13 



194 Act of July 1, 1898 {30 Stat., 618). 

regulations governing the use of timber on nonmineral public lands in 

certain States and Territories, under the act of March 3, 1891 (26 

Stat., 1093), as extended by the act of February 13, 1893 (27 Stat., 

444)," must be observed and the timber must be taken for the purposes 

specified in said circular. 

Very respectfully, Binger Hermann, 

Commissioner. 
Approved, March 22, 1901. 

E. A. Hitchcock, 

8ecreta7y. 



CIRCULAR. 

(27 L. D., 276.) 

export of public timber from western wyoming into idaho. 

Department of the Interior, 

General Land Office, 
Washington, D. C, July 23, 1898. 

1. The act of Congress approved July 1, 1898, entitled "An act mak- 
ing appropriations for sundry civil expenses of the Government for the 
fiscal year ending June thirtieth, eighteen hundred and ninety-nine, 
and for other purposes," provides as follows: 

That section eight of an act entitled "An act to repeal the timber-culture laws, 
and for other purposes," approved March third, eighteen hundred and ninety-one, 
be, and the same is hereby, amended as follows: "That it shall be lawful for the 
Secretary of the Interior to grant permits, under the provisions of the eighth section 
of the act of March third, eighteen hundred and ninety-one, to citizens of Idaho and 
Wyoming to cut timber in the State of Wyoming west of the continental divide, on 
the Snake River and its tributaries to the boundary line of Idaho for agricultural, 
mining, or other domestic purposes, and to remove the timber so cut to the State of 
Idaho." 

2. Under the authority vested in the Secretary of the Interior by the 
above-cited act of July 1, 1898, the following amendment to the rules 
and regulations issued March 17, 1898, under the said act of March 3, 
1891 (26 Stat., 1093), is hereby prescribed and promulgated: 

The restriction contained in said rules and regulations of March 17, 
1898, confining the use of timber cut thereunder to the State in which 
the same is cut, is so far modified as to allow citizens of Idaho and 
Wyoming to cut timber in the State of Wyoming west of the conti- 
nental divide, on the Snake River and its tributaries to the boundary 
line of Idaho for agricultural, mining, or other domestic purposes, and 
to remove the timber so cut to the State of Idaho. 

Binger Hermann, 

Commissioner. 
Approved, July 23, 1898. 
Thos. Ryan, 

Acting Secretary ^ 



Act of March 3, 1901 {31 Stat, U36). 195 

(SOL. D., 540.) 

Department of the Interior, 

General Land Office, 
Washington, D. C, March 20, 1901. 
To special agents of the General Land Office. 

Gentlemen: The act of Congress approved March 3, 1901, entitled 
"An act to amend chapter five hundred and fift3'-nine of the Revised 
Statutes of the United States, approved March third, eighteen hun- 
dred and ninety-one," provides as follows: 

That the provisions of chapter five hundred and fifty-nine of the Eevised Statutes 
of the United States, approved March third, eighteen hundred and ninety-one, 
limiting the use of timl>er taken from public lands to residents of the State in which 
such timber is found, for use within said State, shall not apply to the south slope of 
Pryor Mountains, in the State of Montana, lying south of the Crow Reservation, 
west of the Big Horn River, and east of Sage Creek; but within the above-described 
boundaries the i:)rovisions of said chapter shall apph' equally to the residents of the 
States of Wyoming and INIontana, and to the use of timber taken from the above- 
described tract in either of the above-named States. 

Said act extends to citizens of Montana and Wyoming the privilege 
of taking timber under the provisions of said act of March 3, 1891, 
from the tract specified in the State of Montana for use in either of 
said States. 

In taking such timber the rules and regulations prescribed b}^ the 
circular of February 10, 1900 (29 L. D., 572), containing "rules and 
regulations governing the use of timber on nonmineral public lands 
in certain States and Territories under the act of March 3, 1891 (26 
Stat., 1093), as extended by the act of February 13, 1893 (27 Stat., 
444)," must be observed, and the timber must be taken for purposes 
specified in said circular. 

Very respectfully, Binger Hermann, 

Approved. Commissioner. 

E. A. Hitchcock, 

Secretary. 



The act of March 3, 1891 (26 Stat., 1093), and the acts amendatory 
thereof, apply exclusively to such public lands as are nonmineral. 

The act of June 3, 1878 (20 Stat., 88), and the rules and regulations 
prescribed thereunder b}^ the Department of the Interior January 18, 
1900 (see page 68), provide for the taking of timber from public min- 
eral lands for certain specified purposes within the States and Terri- 
ries named therein. 

Parties who take timber from the public lands under assumed 
authority of said act of June 3, 1878, do so at their own risk, and 
must stand prepared to show that their acts are within the prescribed 
terms of the act granting such privilege; in other words, the burden 



196 Sale of Timber— Act of March 3, 1891. 

is ou such parties of proving by a preponderance of evidence that the 
land from which the timber is taken is "mineral" within the meaning 
of said act, should the question at any time be raised as to the char- 
acter of the land. 

SALE OF TIMBER— ACT OF MARCH 3, 1891. 
J. W. McCUTCHEN ET AL. 

(29 L. D., 322.) 

The sale of timber on unreserved public lands is not authorized by the act of 
March 3, 1891 (26 Stat., 1093). 

Assistant Attorney- General Van Devanter to the Secretary of the 
Interior, November ^7, 1899. 

By letter of September 9, 1899, the Commissioner of the General 
Land Office transmitted to the Department, and favorably recom- 
mended the allowance of, the separate applications of J. W. McCutchen 
and Charles H. Dudley for a permit under the act of March 3, 1891 
(26 Stat., 1093), and the regulations thereunder, approved March 17, 
1898 (26 L. D., 399), to purchase, cut, remove, and dispose of timber 
from sections 4 and 5 and the E. i of sec. 6, T. 14 S., R. 69 W., sixth 
principal meridian, in Teller Count}', Colorado, the same being unre- 
served public timber lands. 

By your reference of November 14, 1899, I am asked for an opinion 
whether the sale of timber on unreserved public lands under said cir- 
cular of March 17, 1898, is authorized by the act of March 3, 1891, 
supra, on which said circular is based. 

The said act of March 3, 1891, amends another act of that date (26 
Stat., 1095, 1099), entitled "An act to repeal timber-culture laws, and 
for other purposes," and is in part as follows: 

And in the States of Colorado, Montana, Idaho, North Dakota and South Dakota, 
Wyoming [New Mexico and Arizona, by the act of February 13, 1893, 27 Stat., 444], 
and the district of Alaska, and the gold and silver regions of Nevada and the Terri- 
tory of Utah in any criminal prosecution or civil action by the United States for a 
trespass on such public timber lands or to recover timber or lumber cut thereon, it 
shall be a defense if the defendant shall show that the said timber was so cut or 
removed from the timber lands for use in such State or Territory by a resident 
thereof for agricultural, mining, manufacturing, or domestic purposes, under rules 
and regulations made and prescribed by the Secretary of the Interior, and has not 
been transported out of the same; but nothing herein contained shall operate to 
enlarge the rights of any railway company to cut timber on the public domain: Pro- 
vided, That the Secretary of the Interior may make suitable rules and regulations to 
carry out the provisions of this act, and he may designate the sections or tracts of 
land where timber may be cut, and it shall not be lawful to cut or remove any tim- 
ber except as may be prescribed by such rules and regulations; but this act shall 
not operate to repeal the act of June third, eighteen hundred and seventy-eight, 
providing for the cutting of timber on mineral lands. 



Sale of Timher—Act of March 3, 1891. 197 

There is nothing in this act which suggests that it was the purpose 
of Congress to thereby authorize or provide for the sale of timber on 
the public lands. As gathered from a careful examination of the terms 
of the act, its purpose seems to have been to modify the law relating to 
the cutting and removal of timber from lands of the United States by 
denj'ing to the Government the right then existing to demand a con- 
viction in a criminal prosecution, or a recovery in a civil action, when 
in any of the States, Territories, or regions named timber is cut or 
removed from the public timber lands for use in such State or Terri- 
tory by ft resident thereof for agricultural, mining, manufacturing, or 
domestic purposes, under rules and regulations made and prescribed 
by the Secretary of the Interior, and is not transported out of that 
State or Territory. 

Section 2-1:61 of the Revised Statutes contained a general prohibition 
against cutting or removing timber from the lands of the United States 
and imposed penalties for its violation. It was to avoid the effect of 
this statute, in instances deemed by Congress to be meritorious, that 
the act under consideration was enacted. It must be construed with 
section 2461 as if their several provisions appeared in one act, one 
part of which in general terms prohibited the cutting or removing of 
timber from the lands of the United States and the other part of which 
authorized the cutting and removing of such timber in specified local- 
ities by designated persons for enumerated purposes, under rules and 
regulations to be made and prescribed by the Secretary of the Interior. 
The act says nothing about selling timber or collecting any compen- 
sation or price for that which is cut or removed under the statute 
and the regulations prescribed thereunder, and it seems to me that 
authority on the part of the Secretary of the Interior to sell such tim- 
ber or to make the right or privilege of cutting or removing the same 
dependent upon payment therefor can not be implied from the general 
authority" given to him to prescribe rules and regulations to carry out 
the provisions of the act. 

1 am of opinion that the legislation under consideration does not 
authorize the sale of timber, and inasmuch as the regulations of March 
17, 1898, supra., provide for sales thereof, I advise that said regula- 
tions be reformed and brought within the authority given the Secre- 
tary of the Interior by the statute under which the}" were prescribed. 

Approved, November 27, 1899. 

E. A. Hitchcock, 

Secfretary. 



198 Forest Fires. 

CIRCULAR— FOREST FIRES. 

Department of the Interior, 

General Land Office, 
Waskmgton, D. C, June 18, 1900. 
For the information of all concerned, attention is called to the follow- 
ing act of (yongress, approved Ma,y 5, 1900, entitled "An act to amend 
an act entitled 'An act to prevent forest fires on the public domain,' 
approved February twenty-fourth, eighteen hundred and ninetv-seven." 
Registers and receivers, United States land offices, special agents, 
and forest officers. General Land Office, should promptl}^ report to the 
proper United States attorney all information they ma}" receive relative 
to the violation of the provisions of this law. 

BiNGER Hermann, 

Comniissumer. 
Approved, June 18, 1900. 

E. A. Hitchcock, Secretary. 



[31 Stats., 169.] 

AN ACT to amend an act entitled "An act to prevent forest fires on the public 
domain," approved February twenty-fourth, eighteen hundred and ninety-seven. 

Se it enacted l)y the Senate and House of Representatives of the United 
States of America in Congress assembled, That an act entitled ' ' An act 
to prevent forest fires on the public domain," approved February 
twenty-fourth, eighteen hundred and ninety-seven, be, and the same is 
hereby, amended so as to read as follows: 

"That any person who shall willfully or maliciouslj^ set on fire, or 
cause to be set on fire, an}^ timber, underbrush, or grass upon the 
public domain, or shall leave or suffer fire to burn unattended near 
any timber or other inflammable material, shall be deemed guilty of a 
misdemeanor, and upon conviction thereof in any district court of the 
United States having jurisdiction of the same shall be fined in a sum 
not more than five thousand dollars or be imprisoned for a term of 
not more than two years, or both. 

" Sec. 2. That any person who shall build a fire in or near an}^ forest, 
timber, or other inflammable material, upon the public domain shall, 
before leaving said fire, totally extinguish the same. An}^ person fail- 
ing to do so shall be deemed guilty of a misdemeanor, and upon con- 
viction thereof in any district court in the United States having juris- 
diction of the same shall be fined in a sum not more than one thousand 
dollars, or be imprisoned for a term of not more than one 3^ear, or 
both. 

" Sec. 8. That in all cases arising under this act the fines collected 



Fared Fires. 199 

shall be paid into the public school fundof the county in which the 
lands where the offense was committed are situated." 
Approved, Ma}^ 5, 1900. 

CRIMINAL PROCEEDINGS. 

In addition to the penalties prescribed in the above act, section 4 of 
the act of .Tune 3, 1878 (20 Stat., 89), provides that "it shall be unlaw- 
ful to" * * * "wantoulydestroyany timber growing on any lands 
of the United States " in "the States of California, Oregon, and Nevada 
and in Washington Territory;" and "any person violating the provi- 
sions of this section shall be guilty of a misdemeanor, and, on convic- 
tion, shall be lined for every such offense a sum not loss than one hun- 
dred nor more than one thousand dollars." (See act cited in full on 
page 98.) 

This act is made applicable to all the public-laud States b}^ the act of 
August -4, 1892 (27 Stat., 348; see page 101). 

Cr\'lL REMEDIES. 

In addition to the wanton destruction of public timber b}' fire, or 
otherwise, being a criminal offense, the United States have all the 
common-law civil remedies, whether for the prevention or redress of 
injuries, which individuals possess. (See 3 Wheaton, 181, and 11 
Howard, 229, under "Civil liability," page 23.) 



The following notice was prepared for posting generally throughout 
the forests on the public lands and in forest reserves: 

FOREST FIRES! WARNING! 

Department of the Interior, 

General, Land Office, 
Washhgtnn, D. C, June 27, 1902. 
Large areas of forest, public and private, are destroyed each year 
b}' fire. This destruction is an injury to everyone, and is a great 
damage, especially in all mountain countries, where a regular fiow of 
the streams is of vital importance. The forest is the most effective 
means of preventing floods and producing- a more regular flow of 
water for irrigation and other useful purposes. 

To prevent the mischievous forest fires Congress passed the law 
approved May 5, 1900, which — 

Forbids setting fire to the woods, and 

Forbids leaving fires, camp fires, and others, without first extinguish- 
ing the same. 



200 Forest Fires — FxjMU't of Tlmher. 

This law provides a maximum punishment, in — 

A fine of |5,000 or imprisonment for two 3''ears, or both, if a fire is 
set maliciously, and 

A fine of $1,000 or imprisonment for one year, or both, if fire 
results from carelessness. 

It also provides that the money from such fines be paid to the school 
fund of the county in which the offense is committed. 

Directions. — Since so many fires start from neglected camp fires, 
the public is requested as follows: 

1. Do not build a larger fire than you need. 

2. Do not build your fires in dense masses of pine leaves, duff, and 
other combustible material where the fire is sure to spread. 

3. Do not build your fire against large logs, especially large rotten 
logs, where it requires much more work and time to put the fire out 
than 5^ou are willing to expend, and where you are rarely quite certain 
that the fire is really and completely extinguished. 

4. In windy weather and in dangerous places dig a fire hole and 
clear off a place to secure your fire. You will save wood and trouble. 

5. Every camp fire should be completely put out before leaving 
camp. 

6. Do not build fires to clear off land and for other similar purposes 
without informing the nearest ranger or the supervisor, so that he may 
assist you. 

These warning notices are posted for your benefit and the good of 
every man in and near this forest, and it is hoped, therefore, that 
everyone will see that they remain intact and useful as long as possible. 

BiNGER Hermann, 
Commnissioner of the General Land Office. 

Approved: 

E. A. Hitchcock, 

Seci'etary of the Interior. 



TIMBER CIRCULAR. 
(24 L. D., 587.) 

Department of the Interior, 

General Land Office, 
Washington, D. O., June 29, 1897. 
To special agents of the General Land Office. 

Gentlemen: Your special attention is called to the fact that in vari- 
ous acts of Congress relating to timber on the public domain, wherein 
authority is given to cut or remove such timber for any use or purpose 
whatever, it is expressly provided that such timber and the products 
thereof shall be consumed in the State or Territory in which the same 
is cut, and shall not be exported or transported out of such State or 



Export of Tim her. 201 

Territory. Yet numerous complaints have been received in this ofBce 
that the provisions of law in this respect are being openly, willfully, 
and flagrantly violated by railroad companies, mining corporations, 
and others, and that the special agents of this office make little, if 
any, attempt to prevent same, or to secure evidence upon which 
this office can recommend the institution of proper legal proceedings 
against the parties guilty thereof. 

You are therefore hereby expressly and imperatively directed to 
hereafter use your utmost endeavors to detect and prevent any such 
violations of law in the State or Territory in your charge, and to this 
end you will visit the several shipping points in the State or Territory 
in which you are located and make personal inspection of all ship- 
ments of timber and logs or any of the products thereof, ascertain the 
quantity in each shipment, the name of the shipper, and to whom con- 
signed, and all facts in regard to same that can be ascertained, keep- 
ing proper and full notes of all information acquired, with names and 
addresses of witnesses, etc. You will then proceed to trace the tim- 
ber, or its product, back, as far as possible, to its original condition 
and the source from which it was procured, and, upon completion of 
the work, will report all of the facts to this office, on Form 4-478, for 
its action. Where you have reliable evidence that any timber cut 
from public lands, or any product of such timber, is being, or about 
to be, exported or transported out of the State or Territor}^ where 
cut, 3^ou will notify all parties in interest, including the railroad or 
transportation compan}^ in writing, that such shipment is in violation 
of law, and forbid them from proceeding further therein, and will 
report your action to this office, submitting therewith evidence of 
service of notice on the several parties. 

In all such cases where you have knowledge that parties who have 
permits, or any special authorit}^ from this Department, to cut or 
remove timber on the public domain, are exporting or transporting 
any timber or any product thereof out of the State or Territory, you 
will at once report them to this office, in order that their permits or 
authority can be revoked and canceled. 

It is the determination of this Department to put a stop to the 
exportation or transportation of the public timber or the products 
thereof from the State or Territory in which the same is produced, 
and special agents must direct their very best efforts to accomplish 
this purpose. Any special agent who is found derelict in his duty in 
this respect will be subject to summary dismissal from the service. 
Very respectfully, 

BiNGER Hermann, 

Co7mriissiooier. 

Approved June 29, 1897. 
Thos. Ryan, 

Acting Secretary. 



202 Timher on Colmlle Indian Reservation. 

TIMBER ON THE COLVILLE INDIAN RESERVATION, IN THE STATE 

OF WASHINGTON. 

(Act of July 1, 1898; 30 Stat., 571, 593.) 

******* 

The right is hereby granted to cut timber for mining and domestic 
purposes, at such prices and subject to such regulations as may be 
prescribed by the Secretary of the Interior, from that portion of the 
Colville Indian Reservation, in the State of Washington, which was 
vacated and restored to the public domain by the act of July first, 
eighteen hundred and ninety-two, entitled "An act to provide for the 
opening of a part of the Colville Reservation, in the State of Wash- 
ington, and for other purposes," and the net proceeds arising from the 
disposition of said timber shall be set apart and disposed of according 
to the provisions of section two of said act of July first, eighteen 
hundred and ninety-two, but primarily the expense incident to the 
disposing of said timber, including compensation of such special agent 
as the Secretary of the Interior shall appoint, shall be paid out of any 
existing appropriation for the survey and allotment of said lands, and 
shall be reimbursed and replaced from the proceeds arising from the 
disposition of the timber. 

****»»» 

CIRCULAR. 

(27L. D., 366.) 

RULES AND REGULATIONS, UNDER THE ACT OF JULY 1, 1898, AUTHOR- 
IZING THE SALE OF TEMBER ON THE PORTION OF THE COLVILLE 
INDIAN RESERVATION, VACATED BY THE ACT OF JULY 1, 1892 (27 
STAT., 62). 

Department of the Interior, 

General Land Office, 
Washington}, D. C, August 11, 1898. 
By virtue of the power vested in the Secretarj^ of the Interior by 
the act of July 1, 1898 (Public, No. 175), the following rules and reg- 
ulations are hereby prescribed: 

1 . The terms of the act do not grant to settlers, miners, or others 
the free use of timber from the lands therein designated for mining or 
other purposes. 

2. The right is granted to cut timber for mining and domestic pur- 
poses at such price, and subject to such regulations as may be pre- 
scribed by the Secretary of the Interior from that part of the Colville 
Indian Reservation in the State of Washington, which was vacated and 
restored to the public domain by the act of Jul}^ 1, 1892 (27 Stat., 62). 



Timber on Colville Indian Reservation. 203 

3. The sale of timber is optional, and the Secretaiy may exercise his 
discretion at all times as to the necessity or desirability of any sale. 

4. While sales of timber may be directed by this Department with- 
out previous request from private individuals, petitions from respon- 
sible persons for the sale of timber in particular localities will be 
considered. Such petitions must describe the land upon which the 
timber stands by legal subdivisions if surveyed; if unsurveyed, as 
delinitel}' as possible by natural land marks; the character of the coun- 
try, whether rough, steep, or mountainous, agricultural oi" mineral, 
or valaa))le chiefly for its forest growth; and state whether or not the 
removal of the timber would injuriousl}" alfect the public interests. 
If any of the timber is dead, estimate the quantity in feet, l)oard 
measure, with the value, and state whether killed ]>y lire or other 
cause. Of the live timber, state the different kinds and estimate the 
quantity of each kind in trees, per acre. P]stimate the average diam- 
eter of each kind of timl)er, and estimate the number of trees of each 
kind, per acre, above the average diameter. State the number of trees 
of each kind above the average diameter it is desired to have offered 
for sale, with an estimate of the number of feet, board measure, 
therein, and an estimate of the value of the timber as it stands. These 
petitions must be filed in the proper local land office, for transmission 
to the Commissioner of the General Land Office. 

5. Before an}' sale is authorized, the timber will be examined and 
appraised, and other questions involved duly investigated by an official 
designated for the purpose; and upon his report action will be based. 

6. When a sale is ordered, notice thereof will be given by publication 
by the Commissioner of the General Land Office; and if the timber to 
be sold stands in more than one count}^, published notice will be given 
in each of the counties, in addition to the required general publication. 

7. Within thirtj^ days after notice to a bidder of an award of timber 
to him, payment must be made in full to the receiver for the timber so 
awarded; or equal payments therefor may be made in thirty, sixty, and 
ninety days from date of such notice, at the option of the purchaser. 
The purchaser must have in hand the receipt of the receiver for each 
payment before he will be allowed to cut, remove, or otherwise dispose 
of the timber covered by that payment. The timber must all be cut 
and removed within one j^ear from the date of the notice by the receiver 
of the award; failing to do so, the purchaser will forfeit his right to the 
timber left standing or unremoved and to his purchase money: Pro- 
vided^ That the limit of one year herein named may be extended by 
the Commissioner of the General Land Office, in his discretion, upon 
good and sufficient reasons being shown. 

8. Thirty da3^s' notice nmst be given by the purchaser to the Com- 
missioner of the General Land Office, of the proposed date of cutting 
and removal of the timber, so that an official may be designated to super- 



204 Thnljer on Col cUle Indian R('xi'rc((t'ion. 

vise such cutting- and removal. Upon application of purchasers, perm its 
to erect temporary" sawmills for the purpose of cuttingor manufacturing 
timber purchased under this act may l)e granted by the Commissioner 
of the General Land Office, if not incompatible with public interests. 
Instructions as to disposition of tops, brush, and refuse, to be given 
through the special agent in each case, must be strictly complied with, 
as a condition of said cutting and manufacture. 

9. No timber taken from the said public lands and sold as above pre- 
scribed may be exported from the State of Washington. 

10. Receivers of public moneys will issue receipts in duplicate for 
moneys received in payment for timber, one of which will be given the 
purchaser and the other will be transmitted to the Commissioner of the 
General Land Office in a special letter, reference being made to the letter 
from the Commissioner authorizing the sale, by date and initial, and 
with title of case as therein named. Receivers will deposit to the 
credit of the United States all such moneys received, specifying that the 
same are on account of sales of public timber on the north half of the Col- 
ville Indian Reservation, State of Washington, under the act of July 
1, 1898. A separate monthly account-current (Form -1-105) and quar- 
terlj^ condensed account (Form 4—104) will be made to the Commissioner 
of the General Land Office, with a statement in relation to the receipts 
under the act as above specified. 

11. Special instructions will be issued for the guidance of officials 
designated to examine and appraise timber, to supervise its cutting and 
removal, and for carrying out other requirements connected therewith. 

12. The Secretary of the Interior reserves the right to prescribe such 
further restrictions as he may at any time deem necessary, or to revoke 
the privileges granted, in any cases wherein he has information that 
persons are abusing the same, or when it is necessary for the public 
good. 

13. A homestead settler, Indian allottee, or miner, who is holding 
and occupying his settlement, allotment, or mining location in full 
compliance with the law governing such claim, is allowed to cut there- 
from such timber as is required to clear the ground for pronqyt and 
hona fide cultivation, and for building, fencing, and making other 
improvements upon his claim; and he may exchange it for lumber to 
be applied to those purposes; but he can not lawfullj^ ><dl the timber 
for money, or exchange it for supplies, provisions, or use it to pay 
debts, etc., except so far as it may have been cut for the purpose of 
speedily cultivating, or mining more conveniently, the ground from 
which it was severed. 

BiNGER Hermann, 

Com m Issloner. 
Approved, August 11, 1898. 
C. N. Bliss, 

Secretm^. 



Mining Claim — Colville Indian Reservation. 205 

OPINION. 

(SOL. D., 88.) 

The owner of a bona fide mining claim in the Colville Indian Reservation has the same 
right, by virtue of the act of July 1, 1898, extending the mining laws to said 
reservation, to use and remove the timber upon his claim as the owner of a 
mining claim elsewhere. 

Assistant Attorney- Getieral Van Devanter to the Secretary of the 
Interior, June 26, 1900. 

I am in receipt by your reference, with request for opinion, of a let- 
ter from the Commissioner of Indian Affairs of May 24, 1900, relative 
to the cutting- of timber on mining claims on the south half of the Col- 
ville Indian Reservation, Washington. 

The proposition of the Indian Office is to enter into a contract with 
the owners of certain mining claims permitting them to place a sawmill 
plant on such mining claims for the sole purpose of cutting lumber and 
timber to be used on such claims for the development of the property. 
A contract to this effect was submitted for yoxw approval, which was 
refused. 

The Indian Office has resubmitted the matter for further considera- 
tion, and has presented an argument sustaining the right of mineral 
claimants on this reservation to cut timber upon their claim; and in 
support of the propriety of making the proposed contract says: 

The Office is aware that there is no law and so far as known no precedent for the 
making of such agreements with miners. But it is thought that miners and mining 
companies on that portion of the reservation who are developing properties in good 
faith will be willing to enter into such arrangements, liecause risking nothing by 
violations of the law they will have nothing to lose, whereas timber trespassers and 
speculators — those locating claims under the guise of miners, only to procure the 
timber — will thereby be deterred from operating on the reservation at all. 

By the act of eTuly 1, 1892 (27 Stat, 62), a portion of the Colville 
Reservation was "vacated and restored to the public domain." The 
remaining portion became and remained the Colville Indian Reserva- 
tion. The act of July 1, 1898 (30 Stat. , 571, 593), contains the following 
provision: 

That the mineral lands only in the Colville Indian Reservation in the State of 
Washington shall be subject to entry under the laws of the United States in relation 
to the entry of mineral lands: Provided, That lands allotted to the Indians or used by 
the Government for any purpose or by any school shall not be subject to entry under 
this provision. 

Thus the mineral lands within the boundaries of the present reser- 
vation were made subject to location and entry under the mining laws. 
The owner of a honajide mining claim on these lands therefore has the 
same right to use or remove the timber found upon his claim which is 
possessed by the owner of a mining claim situated elsewhere, and this 



206 Colvllle Indian Resei'vation — Timher in Alaska. 

Department has no more authority to control the exercise of this right 
in the one case than in the other. This right is not possessed by timber 
trespassers or speculators, who locate claims "under the guise of 
miners, only to procure the timber," but is restricted to owners of 
bona fide mining <;laims and authorizes them to cut timber from their 
own claims for use in the development or working thereof or to remove 
such timber when necessary to facilitate the convenient and proper 
development or working of the claims. This right has long been 
recognized by Congress and the courts, and is not one which can be 
withheld or granted by this Department as a matter of discretion; but 
it is the duty of the officers of the Department to see to it that the 
right is not abused by those by whom it is possessed and that it is not 
enjoyed by those who do not possess it. The owner of a hma, fide 
mining claim in the Colville Indian Reservation may, for the purposes 
and to the extent herein specified, lawfully cut or remove timber from 
his claim in the absence of any contract or agreement with any officer 
charged with the administration or supervision of Indian affairs, and 
one who is not the owner of a hona^ fide mining claim in such reserva- 
tion can not, even if he obtains such a contract or agreement, lawfully 
cut or remove timber from any lands in said reservation. I am there- 
fore of the opinion that the execution and approval of a contract such 
as is submitted will not establish, add to, or take from the rights of 
owners of hma fide mining claims in the premises. 

Approved. 

E. A. Hitchcock, 

Secretary. 



TIMBER IN ALASKA. 

The act of May 14, 1898 (30 Stat., 409), entitled "An act extending 
the homestead laws and providing for right of way for railroads in 
the district of Alaska, and for other purposes," makes provision for 
the use of timber upon the public domain in that district as follows: 

Section 2 provides — 

That the right of way through the lands of the the United States in the district of 
Alaska is hereby granted to any railroad company, duly organized under the laws of 
any State or Territory or by the Congress of the United States, which may hereafter 
file for record with the Secretary of the Interior a copy of its articles of incorporation, 
and due proofs of its organization under the same, to the extent of one hundred feet 
on each side of the center line of said road; also the right to take from the lands of 
the United States adjacent to the line of said road, material, earth, stone, and timber 
necesary for the construction of said railroad, etc. 

Section 6 provides — 

That the Secretary of the Interior is hereby authorized to issue a permit * * * 
unto any responsible person, company, or corporation, for a right of way over the pub- 



Timber in Alaska. 207 

lie domain in said district * * * to construct wagon roads and wire rope, aerial, 
or other tramways, and the privilege of taking all necessary material from the public 
domain in said district for the construction of said wagon roads or tramways, etc. 

Section 11 relates to — 

THE TIMBER ON PUBLIC LANDS IN THE DISTRICT OF ALASKA, 

and provides: 

Sec. 11. That the Secretary of the Interior, under such rules and regulations as he 
may prescibe, may cause to be appraised the timber or any part thereof upon public 
lands in the district of Alaska, and may from time to time sell so much thereof as he 
may deem proper for not less than the appraised value thereof, in such quantities to 
each purchaser as he shall prescribe, to be used in the district of Alaska, but not for 
export therefrom. And such sales shall at all times be limited to actual necessities; 
for consumption in the district from year to year, and payments for such timber shall 
be made to the receiver of public moneys of the local land office of the land district 
in which said timber may be sold, under such rules and regulations as the Secretary 
of the Interior may prescribe, and the moneys arising therefrom shall be accounted 
for by the receiver of such land office to the Commissioner of the General Land 
Office in a separate account, and shall be covered into the Treasury. The Secretary 
of the Interior may permit, under regulations to be jDrescribed by him, the use of 
timber found upon the public lands in said district of Alaska by actual settlers, resi- 
dents, individual miners, and prospectors for minerals, for firewood, fencing, build- 
ings, mining, prospecting, and for domestic purposes, as may actually be needed by 
such persons for such purposes. 

The regulations prescribed under this section are embodied in the 
circular issued June 8, 1898, under said act of May 14, 1898, and are 
as follows (27 L. D., 264): 

43. While sales of timber are optional, and the Secretary of the Interior may 
exercise his discretion at all times as to the necessity or advisability of any sale, 
petitions from responsible persons for the sale of timber in particular localities will 
be received by this Department for consideration. 

Such petitions must describe the land upon which the timber stands, as definitely 
as possible by natural landmarks; the character of the country, whether rough, 
steep, or mountainous, agricultural or mineral, or valuable chiefly for its forest 
growth; and state whether or not the removal of the timber would injuriously affect 
the public interests. If any of the timber is dead, estimate the quantity in feet, 
board measure, with the value, and state whether killed by fire or other cause. Of 
the live timber, state the different kinds and estimate the quantity of each kind in 
trees per acre. Estimate the average diameter of each kind of timber, and estimate 
the number of trees of each kind per acre above the average diameter. State the 
number of trees of each kind it is desired to have offered for sale, with an estimate 
of the number of feet, board measure, therein, and an estimate of the value of the 
timber as it stands. 

44. Before any sale is authorized the timber will be examined and appraised. 
Notice thereof will be given by publication by the Commissioner of the General 
Land Office. 

45. The time and place of filing bids and other information for a correct under- 
standing of the terms of each sale will be given by published notices or otherwise. 
Timber is not to be sold for less than the appraised value. The Commissioner 



208 Timher in Alaska. 

of the General Land Office must approve all sales, and he may make allotment of 
quantity to any bidder or bidders if he deems proper. The right is also reserved 
to reject any or all bids. A reasonable cash deposit, to accompany each bid, will be 
required. 

46. Within thirty days after notice to a bidder of an award of timber to him pay- 
ment must be made in full to the receiver for the timber so awarded; or equal 
payments therefor may be made in thirty, sixty, and ninety days from date of such 
notice, at the option of the jjurchaser. The purchaser must have in hand the receipt 
of the receiver for each payment before he will be allowed to cut, remove, or other- 
wise dispose of the timber covered by that payment. The timber must all be cut 
and removed within one year from the date of payment therefor; failing to so do, 
the purchaser will forfeit his right to the timber left standing or unremoved and to 
his purchase money: Provided, That the limit of one year herein named may be 
extended by the Commissioner of the General Land Office, in his discretion, upon 
good and sufficient reasons being shown. 

47. Notice must be given by the purchaser to the Commissioner of the General 
Land Office of the proposed date of cutting and removal of the timber, so that, if 
practicable, an official may be designated to supervise such cutting and removal. 
Upon application of purchasers, permits to erect temporary sawmills for the purpose 
of cutting or manufacturing timber purchased und'er this act may be granted by the 
Commissioner of the General Land Office, if not incompatible with the public 
interests. 

48. No timber taken from the public lands and sold as above prescribed may be 
exported from the district of Alaska. 

49. Special instructions will be issued for the guidance of officials designated to 
examine and appraise timber, to supervise its cutting and removal, and for carrying 
out other requirements connected therewith. 

50. Actual settlers, residents, individual miners, and prospectors for minerals may 
procure, free of charge, from unoccupied unreserved public lands in Alaska, for fire- 
wood, fencing, buildings, mining, prospecting, and for domestic purposes, so much 
timber as may be actually needed by such persons, for individual use, to an extent 
not exceeding, in stumpage valuation, $100 in any one year. It is not necessary to 
secure permission from the Department to take timber from public lands as allowed 
in this paragraph. The exercise of such privilege is, however, subject at all times 
to supervision by the Department, with a view to restriction or prohibition if deemed 
necessary. The uses specified in this paragraph constitute the only purposes for 
which timber may be taken, free of charge, from public lands in Alaska. 

51. In cases arising under the preceding paragraph in which the parties needing 
the timber are not in a position to procure it from the public lands themselves, it is 
allowable for them to secure the cutting, removing, sawing, or other manufacture of 
the timber through the medium of others, agreeing with the parties thus acting as 
their agents direct in taking or otherwise handling the timber that they shall be paid 
a reasonable amount to cover their time and labor expended and all legitimate 
expenses incurred in connection therewith exclusive of any charge for the timber itself. 

52. Section 2461, United States Revised Statutes, is in force in the district of 
Alaska, and its provisions may be enforced against any person or persons who cut or 
remove, or cause or procure to be cut or removed, or aid or assist or are employed in 
cutting or removing, any timber from public lands therein, except as allowed by law. 



IIN^DEX 



Accretions: Page. 

Use of timber on accretions that are public lands 163 

Act of June 3, 1878 (20 Stat., 88): 

See Mineral lands. 
Act of June 3, 1878 (20 Stat., 89): 

Made applicable to all the public-land States by act of August 4, 1892 (27 

Stat. , 348 ) 6, 7, 10, 11, 51, 53, 56, 82, 97, 101 

Operation of, distinguished from that of the act of June 3, 1878 (20 Stat., 

88) 82-87, 97, 98, 103-114 

Sale of certain timber lands provided for by sections 1, 2, and 3 6, 10, 98 

Section 4 prohibits the cutting of timber on public lands in the public- 
land States for export, disposal, or transportation, and the wanton 
destruction thereof; and authorizes the cutting of same liy miners and 
agriculturists for use on their claims, and the taking of public timber 
for the use of the United States 6, 10, 100, 101, 102, 109, 114 

Section 4 does not permit the taking of timber for use in a quartz mill 
adjacent to the land from which it is cut 89 

Section 4 does not permit the cutting of timber with intent to dispose of 
the same; but a settler who cuts timber from his claim while clearing it 
for cultivation may dispose of it to the best advantage 101, 102 

Section 4 permits miners or settlers to employ others to cut for them such 
timber as they are authorized to cut for themselves, and to receive in 
exchange for timber so cut lumber to be used for the improvements for 
which the timber was cut 102 

Section 5 authorizes settlement of prosecutions under section 2461, U. S. 
R. S 6, 50, 51, 53, 100, 103-106 

Payment of $2.50 per acre, under section 5, relieves from criminal prose- 
cution only 103 

Section 2461, U. S. R. S., not repealed by 22,103-106 

Section 4751, U. S. R. S., repealed by, as regards all the public-land States. 53-56, 

106 
Act of March 3, 1891 (26 Stat., 1093): 

Authorizes the cutting and removal of timber from public lands in cer- 
tain States and Territories, for use in the State or Territory where cut, 
by residents thereof, for agricultural, mining, manufacturing, or domes- 
tic purposes, under rules and regulations prescribed by the Secretary of 
the Interior 7, 11, 190-197 

Made applicable to New Mexico and Arizona by act of February 13, 1893 

(27 Stat., 444) 7,8,11,191,193 

Made applicable to California, Oregon, and Washington by act of March 
3, 1901 (31 Stat, 1436) 7,9,11,191,193 

Circular of February 10, 1900, issued under 191 

Amended so as to permit citizens of Idaho and Wyoming to cut timber 

from certain lands in Wyoming for use in Idaho 9, 11, 194 

21150—03 11 209 



210 Index. 

Act of March 3, 1891 (26 Stat, 1093)— Continued. Page. 

Amended so as to permit residents of Montana and Wyoming to take tim- 
ber from a specified tract in Montana for use in eitlier of said States. 9, 11, 195 

Applies exclusively to lands which are nonmineral in character 195 

Sale of timber on unreserved pubUc lands not authorized by 196 

Acts of Congress Cited and Construed: 

See Table of. 
Advertisement of Sale of Public Timber: 
See Sale. 

Must be by consent of the Secretary of the Interior 52 

Alaska: 

Use of public timber authorized for construction of railroads, wagon roads, 

and tramways in 8, 11, 206 

The Secretary of the Interior authorized to sell timber upon public lands 

in 8,11,207 

Free use of timber upon public lands in, permitted to miners, settlers, and 

others 8,11,207 

Regulations governing sale and free use of timber in 207 

Timber taken from public lands may not be exported from 208 

Allotments: 

See Reservations; Indians. 

Lands chiefly valuable for timber not subject to Indian allotment 150 

Boxing Public Timber: 

See Turpentine Trespass. 
Burden of Proof: 

See Liability {civil proceedings); Confusion of Goods. 
Burned Timber: 

See Homestead and Preemption Entries. 
California: 

Privileges of the act of March 3, 1891 (26 Stat., 1093) extended to residents 

of 9,11,191,193 

Cases Cited: 

See Table of 
Circulars: 

INIarch 1, 1883. Measure of damages in cases of public timber trespass. . . 38 

December 15, 1885. Timber on homestead and preemption entries 147 

February 2, 1895. Burned timber on homestead entries in Wisconsin, 

Minnesota, and Michigan 152 

June 29, 1897. Instructions to special agents as to export of timber 200 

June 8, 1898 (paragraphs 43 to 52). Sale and free use of public timber in 

Alaska 207 

July 23, 1898. Export of public timber from western Wyoming into 

Idaho 194 

August 11, 1898. Rules and regulations under act of July 1, 1898, author- 
izing the sale of timber on the portion of the Colville Indian Reserva- 
tion vacated by act of July 1, 1892 (27 Stat., 62) 202 

January 18, 1900. Rules and regulations governing the use of timber on 

public mineral lands, under act of June 3, 1878 (20 Stat., 88) 68 

February 10, 1900. Rules and regulations governing the use of timber on 
nonmineral public lands under act of March 3, 1891 ( 26 Stat. , 1093 ) ... . 191 

Junel8, 1900. Forest fires 198 

March 20, 1901. Use of timber on nonmineral public lands; act of March 
3, 1901 (31 Stat.. 1439) 195 



Index, 211 

Circulars — Continued. Page. 

March 22, 1901. Privilegea of act of March 3, 1891 (26 Stat., 1093), 
extended to CaUfornia, Oregon, and Washington by act of March 3, 1901 

(31 Stat., 1436) 193 

Civil Proceedings: 

See LiahiUty. 
Col villa Indian Reservation: 

The right granted to cut timber from the nortli half of, for mining and 
domestic purposes, at such prices and under such regulations as may be 

prescribed by the Secretary of tlie Interior f*,!!, 202 

Circular under act of July 1, 1898 (30 Stat., 593) 202 

The owner of a bona fide mining claim in, has the same right io use and 

remove the timber thereon as the owner of a claim elsewhere 205 

Commingling- of Timber: 

See Confusion of Goods. 

Compensatory Damages: 

See Liability {civil proceedings); Settlement. 
Compromise : 

See Liahtlity {civil proceedings) ; Settlement. 
Confusion of Goods: 

Fraudulent admixture of public and ])rivate timber 59-61 

Burden of proof in case of intermingling public and private timber 60 

Criminal Proceedings: 

See LiahiUty. 
Cut Timber: 

Not a part of the realty 61-64 

Damages: 

See Liability {cinil jjroceedings). 

Circular relative to measure of 38 

Dead Timber: 

Use of 7,8,11,151-155 

Depot Houses: 

See Railroads. 
Enforcing Judgment: 

See Liability {ciril jn-oceedings). 
Exchanging Timber for Iiumber: 

See Shares. 
Exemplary Damages: 

See Liability {civil proceedings). 
Export: 

Section 2460, U. S. R. S., authorizes employment of land and naval forces 
to prevent transportation or carrying away of timber of the United States 

in Florida 5, 10 

Section 2462, U. S. R. S., provides penalties for transporting or exporting 
any timber cut from any public lands not reserved or jiurchased for 

furnishing timber for the Navy 5, 10 

Collectors of customs in Alabama, Florida, Louisiana, and Mississippi 
must see to it that no live-oak timber cut from public lands without the 

consent of the Navy Department is transported out of those States 5, 10 

Public timber exported from the Territories of the United States liable to 

seizure 6,10,53,57,59 

Timber cut under provisions of the act of June 3, 1878 (20 Stat., 88), may 
not be shipped out of the State or Territory where cut. (See circular 
of January 18, 1900) ' 68,74 



212 Index, 

Export — Continued. Page. 

Section 4 of the act of June 3, 1878 (20 Stat., 89), extended by the act of 
August 4, 1892 (27 Stat., 348), prohibits the cutting of timber in the 

public-land States with the intent to export or dispose of the same 6, 

10, 57, 83, 97, 100, 104, 106, 109, 127 
The act of March 3, 1891 (26 Stat., 1093) , confines use of timber cut there- 
under to the State or Territory in which cut 190, 191 

Timber cut from specified tract in Wyoming may be removed to Idaho. 9, 11, 194 
Timber cut from specified tract in Montana may be used in either Mon- 
tana or Wyoming 9, 11, 195 

Instructions to special agents as to export of timber from the State or Ter- 
ritory where cut 200 

Timber cut from the Colville Indian Reservation under authority of the 
act of July 1, 1898 (30 Stat., 571), may not be exported from the State 

of Washington 204 

Fences: 

See Railroads. 
Fires, Forest: 
Generally — 

Spread of, required to be guarded against 68, 69, 198 

Notices relative to, for posting 199 

Civil proceedings — 

The United States have all the common law civil remedies, whether 

for the prevention or redress of injuries, that individuals possess.. 199 
Criminal proceedings — 

Act of May 5, 1900 (31 Stat., 169), to prevent forest fires upon the 

public domain 9,10,198 

Circular relative to 198 

Act of June 4, 1888 (25 Stat., 166). amending section 5388, U. S. R. S., 
provides penalties for the wanton destruction of any timber on lands 
of the United States reserved or purchased for military or other 
purposes, or upon any Indian reservation, or lands belonging to or 

lawfully occupied by any tribe of Indians 7, 10 

Section 4 of Act of Jmie 3, 1878, 20 Stat., 89 (extended by act of 
August 4, 1892, 27 Stat., 348), prescribe penalties for wanton destruc- 
tion of public timber in the public-land States 6, 199 

Florida: 

The President authorized to use the land and naval forces to protect tim- 
ber in 5,10 

The use of timber felled by storm on certain homestead entries in, pro- 
vided for 8,11,155 

Forfeiture : 

Of grants to roads not completed by September 29, 1890 6, 164 

Fuel: 

See Railroads, 
History of Public Timber Legislation: 

See Case of United States v. Mock ( 149 U. S. , 273) 39 

Homestead and Preemption Entries: 
Generally — 

Inceptive rights acquired by claimants held to extend to removal and 

use of necessary timber in cultivating and improving claims 11, 

39, 115-127, 138, 147, 148, 159, 181 

Use of timber on 11, 31, 115-127, 138, 140, 146, 147, 148, 157, 181, 204 

Circular of December 15, 1885, relative to the use of timber on 147 



Index. 213 

Homestead and Preemption Entries — Continued. Page. 

Generally — Continued. 

A homestead entry works no change in the title of lands which can 

prevent prosecution for trespass thereon 14, 1 22 

Possession by homestead claimant and receiver's receipt issued sub- 
sequent to bringing action for trespass can not defeat action 33, 157 

Privileges of a homestead claimant, with respect to the standing tim- 
ber, analagous to those of a tenant for life or for years 126 

Abandonment of their lands by homestead or preemption claimants 
after they have cut and sold the timber thereon is not alone proof 
of intent to defraud the Government, if the other circumstances 

show good faith 140 

Boxing and chipping trees for turpentine purposes is not such culti- 
vation as is contemplated by the homestead law 157 

Act of June 3, 1878 (20 Ptat., 89)— 

Section 4 (extended by act of August 4, 1892, 27 Stat., 348) authorizes 
the use of public timber by agriculturists on their claims in the 

public land States 6, 10,100, 101,107,114 

Indian homesteads — 

Use of timber on 148 

Burned timber — 

On certain homestead entries in Wisconsin, Minnesota, and Mich- 
igan 8,11,151 

Circular relative to 152 

Sale- 
Timber on homestead entries may not be cut for purposes of sale 122, 

147, 159 
Storm-felled timber on homesteads in Florida — 

Sale and use of, authorized 8, 11, 155 

Idaho: 

The Secretary of the Interior authorized to permit citizens of Idaho and 
Wyoming to cut timber in Wyoming, for removal to Idaho, for certain 

purposes 9, 1 1 , 194 

Identification of Public Timber: 

See Confusion of Goodx. 
Indians : 

Lands reserved for or occupied by — 

Timber on 7, 8, 10, 60, 62, 148-150 

Dead or down timber on 7, S, 11 

Act of March 3, 1875 (18 Stat., 482)— 

Does not apply to lands within Indian reservations, except in cases 

in which it is specially so provided 164 

Indictment: 

See Liability {criminal proceedings). 
Informers: 

See Section 4751, U. S. R. S. 
Injunction: 

See Liability {civil proceedings). 
Injury, Present and Prospective: 

Inflicted upon public timber by boxing trees for turpentine purposes 163 

Innocent Purchaser: 

See Liab ility {civil proceed ings ) . 
Intermingling- of Timber: 
See Confusion of Goods. 



214 Index. 

Joint Trespassers: Page. 

See Liability {ciiil proceedings) . 
Judgment: 

See Liability {civil jtroceedings) . 
Jurisdiction: 

The United States court for the district of Washington has jurisdiction of 
an action brought by the United States against a defendant, found there, 
to recover for timber unlawfully cut from lands of the United States in 

Idaho 140 

Liability for Public Timber Trespass: 
Civil proceedings — 

United States entitled to civil remedies 1 7, 22, 23, 29, 57, 59, 62, 64, 157, 199 

Right to pursue and reclaim property 23, 56, 59 

Acquittal in criminal suit no bar to suit to recover the value of timljer. 27, 140 

Structures wrongfully placed on public land 28, 61 

A person- cutting timber from land sold to him by public officers with- 
out authority, is liable in damages to the United States to the same 
extent as though the trespass had been committed upon any other 

part of the public domain 26 

Trespassers who cut timber from public lands for use in a quartz mill 
adjacent thereto, under assumed authority of section 4 of the act of 
June 3, 1878 (20 Stat., 89'), held liable only for the actual value of the 
wood in the tree, the precise question as to their right to do so never 

having been decided 89 

Damages— Nominal, compensatory, exemplary, and punitive.. 28-43 

79, 96, 101, 102, 116, 158, 161-163, 183 

Malice 33 

Replevin 28, 57, 60-62 

Trover 28, 57, 115, 186 

Joint trespassers 42, 43 

Burden of proof 42, 60, 68, 77, 78, 79, 116, 119, 158, 174, 195 

Partnership 42, 43 

Judgment, enforcing 43 

Settlement 39, 44-51 , 59 

Compromise 44-51, 59 

Seizure 50, 56, 57, 59 

Inj unction 22, 64 , 65, 183 

Payment of $2.50 per acre, under section 5 of the act of June 3, 1878 

(20 Stat., 89), does not relieve from civil liability 51, 103 

Settlement under act of June 15, 1880 (21 Stat., 237) 51 

Should not be instituted without instructions from proper authoritj' 65, 66 

Act of March 3, 1891, 26 Stat., 1093 (extended by act of February 13, 
1893, 27 Stat., 444, and by act of March 3, 1901, 31 Stat., 1436), 

provides defense in cases of, in certain States and Territories 7, 

11,190,193 
Criminal proceedings — 

Under section 2461, U. S. R. S 13-22,27,57,103-106,122,127,156 

Under "mineral" act of June 3, 1878 (20 Stat , 88) 67,69,70-77 

Under "timber and stone" act of June 3, 1878 (20 Stat., 89) 100, 

101, 103, 104, 127, 199 
Under act of May 5, 1900 (31 Stat., 596), to prevent forest fires... 9, 10, 198 

Under act of June 4, 1888 (25 Stat., 166) 7 

The act of March 3, 1891, 26 Stat., 1093 (extended by acts of February 
13, 1893, 27 Stat., 444, and March 3, 1901, 31 Stat., 1436), provides 
defense in cases of, in certain States and Territories 7, 11, 190, 193 



Index. 215 

Liability for Public Timber Trespass — Continued. Page. 

Criminal proceedings — Continued. 

Criminal liability can not be compromised 22 

Indictment 20,21,28,29,57 

Trespass through negligence 21 

Section 2461, U. S. R. S., not repealed by acts of June 3, 1878 (20 Stat., 

89), and August 4, 1892 (27 Stat., 348) 22,103 

Acquittal in criminal suit no bar to suit to recover the value of timber. 27, 140 
Payment of $2.50 per acre, under section 5 of the act of June 3, 1878 

(20 Stat., 89), only relieves from criminal liability 51, 103 

Settlement of, under act of June 15, 1880 (21 Stat. , 237 ) 51 

Absence of criminal intent can not be pleaded in defense 69, 116, 117 

A person who has cut timber unlawfully, but believing that it belonged 

to him, is not liable to criminal prosecution 27 

A proposition of settlement submitted with the understanding that, 
if accepted, criminal proceedings for the trespass will be waived, 

will be rejected 48 

What constitutes evidence of intent to violate the law 127-128, 133 

Malice: 

See Liability [civil proceedings) . 

Defined 33 

Measure of Damages: 

See Liability {civil proceedings) . 

Circular relative to 38 

Mesquite: 

Whether mesquite is "timber" under section 2461, U. S. R. S., is a ques- 
tion to be determined by the jury, and not to be decided on demurrer. . 17 
Military Posts: 

Timber may be taken from public lands for use at 188-189 

Military Reservations: 

See Reservations. 
Mill Sites: 

Timber may be cut thereon for construction of mill, but not for sale or 

speculation - 81 

Mineral District: 

See Mineral Lands {act of Jane 3, 1S78; l^O Stat., SS). 

Meaning of term discussed 109-110 

Mineral Lands: 

Defined 67,78,95,96,181 

Act of June 3, 1878 (20 Stat., 88)— 

Authorizes the use of timber on, in certain States and Territories. 6, 10, 67-80 

Circular of January 18, 1900, under 68 

Section 3 provides penalties for violation of the act, or of rules and 

regulations prescribed thereunder by the Secretary of the Interior. 67, 71 
Force and effect of rules and regulations prescribed by the Secretary of 

the Interior 69,72,95,97 

Parties convicted of timber trespass on public mineral lands for fail- 
ing to utilize all of each tree cut that could profitably be used 69 

Not repealed by act of March 3, 1891 (26 Stat. , 1093) 7, 191 

Railroad companies can not take timber from public lands under act 

of Jmie3, 1878 67,77,80,180 

Operation of, distinguished from that of the act of June 3, 1878 (20 

Stat., 89) 82-87,97,98,103-114 

Burden of proof is on the party claiming the right to cut under, to 
show the facts entitling him to cut 77, 78, 97, 195 



216 Index. 

Mineral Xiands — Continued. Page. 

Act of June 3, 1878 (20 Stat., 88)— Continued. 

Applies to certain States and Territories, and all other mineral districts 

of the United States 87 

Does not apply to the State of Oregon, there being no such mineral 

district 89,98,107 

Can only operate upon "mineral districts," if any there be, not spe- 
cifically provided for by designating the particular State or Territory 

in which it is situated by name 98, 1 12 

Does not apply to California 112 

Act of June 15, 1880 (21 Stat., 2.37)— 

Does not apply to mineral lands 52 

Act of March 3, 1891 (26 Stat., 1093)— 

Does not apply to mineral lands 195 

Timber on mineral claims — 

• It is the duty of a locator to care for the timber on his claim 80 

Can only be used by parties occupying claims in developing the 

same 81,128,189 

Section 2 of the act of February 20, 1896 (29 Stat., 11), opening cer- 
tain forest reservations in Colorado for the location of mining claims, 
authorizes the use of timber on the claims for the development of 
the same, but prohibits the taking of timber from other portions of 

the reservations 8, 10, 11, 190 

Timber taken under assumed authority of the act of February 20, 1896 
(29 Stat., 11), may not be sold to raise money to make imj^rove- 

ments on the land 190 

The owner of a bona fide mining claim in the Colville Indian Reser- 
vation has the same right to use and remove the timber upon his 

claim as the owner of a mining claim elsewhere 205 

The exclusive right of a locator to occupy and work a mineral claim 
during his occupancy does not exclude the land from the operation 
of R. S., section 2261, 20 Stat., 89, and 27 Stat., 348, making it a 

misdemeanor for any person to cut timber on the public lands 128 

An applicant for patent for a mineral claim has no right to cut tim- 
ber therefrom before he receives a certificate, and a license from 
him to so cut the timber is no protection to the licensee as against 

the Government 128 

Moiety: 

See SeUlement. 

Section 4751, U. S. R. S., provides for payment of, to informers 5, 10, 52 

Clause modified and partly repealed 51, 53, 55, 101, 106 

Moneys Collected for Trespass: 

See Fires, Forest; Moiety; Settlement. 

Disposition of \ 52,53,55,101,198 

Montana: 

Citizens of Montana and Wyoming may take timber from a specified tract 

in Montana, for use in either of said States 9, 11, 195 

Naval Reserve Lands: 

Timber on. See sections 2460, 2461, 2462, 2463, 4205, 4751, 5388, U. S. R. S., 
andactsof March 3, 1875 (18 Stat., 481), and June 4, 1888 (25 Stat., 166). 
Navy: 

Lands producing live-oak and red-cedar timber to be selected to furnish 

timber for 5,10 

Negligence: 

See Liability {criminal proceedings). 



Index. 217 

Nominal Damag'es: Page. 

See Liability {ciml proceedings) . 
Oregon: 

Privileges of act of March 3, 1891 (26 Stat., 1093), extended to residents 

of 9,11,191,193 

Preemption Claims: 

See Homestead and Preemption Entries, 
Prospective Value: 

See Injury, Present and Prospective, 
Punitive Damag'es: 

See Liability {civil proceedings) . 
Purchaser : 

Liability of, for timber taken unlawfully 31, 32, 34, 116, 117, 181 

In good faith, of Hurplus timber cut by a settler who is engaged in improv- 
ing his land, is protected 140, 146 

Railroads: 

Generally — 

The term " railroad " includes all structures necessary to its operation. 172 
In case of destruction, caused by sparks from a locomotive, of timber 
unlawfully taken from public landn, the trespasser can not maintain 

an action against a railroad company 77 

Land-grant roads — 

Authorized to take timber for construction purposes 6, 10, 164 

Denver and Rio Grande Railroad Company may take timber forrepairs. 6, 164 

Forfeiture of grants 6, 164 

Timber on unearned and unpatented sections 183 

Tenants in common 183 

Suits to enjoin trespassers 183 

The United States may recover for trespass committed on unsurveyed 

lands within the limits of the Northern Pacific Railroad grant. . . 1S4-186 
The United States can not recover for timber cut from lands granted 
to a State for railroad purposes, which subsequently reverted to the 

Government for failure of conditions 186 

Right of way roads — 

Authorized to take timber for construction purposes. 6, 10, 143, 164, 172, 174 
May take timber for the original construction of a branch line which 
it was authorized by its charter to build, although such branch is 

not constructed until after the main line 173 

Have no right to cut timber prior to the filing of the papers required 
by the law, and the subsequent use for construction purposes of 
timber so cut does not render the cutting lawful, nor divest the title 

of the United States to the timber 174 

The right to take timber for construction purposes, acquired by the 

acceptance of the articles of incorporation, etc., by the Secretary of 

the Interior, relates back to the time when suchpaj^ers were filed.. 174 

May go beyond the termini of the proposed road to secure material 

for construction, if timber can not be found laterally adjacent to, 

and within the termini 175 

In Alaska 8, 11, 206 

Adjacent lands — 

Defined 120,140,144,165,173 

Timber may be taken from, for construction purposes 6, 10, 120, 143 

Timber taken from, may be used for construction purposes on any 
part of the road 165, 166, 172 



218 Index. 

Kailroads — Continued. Page. 

Adjacent lands — Continued. 

In determining whether timber is taken from, the nature of the 
country and the most available means of transportation, may be 

considered 175 

Additions — 

After completion, a railroad has no right to take public timber to 

build new switches and side tracks 166 

Construction purposes — 

Timber may be taken for 6, 10, 143, 165 

Denver and Eio Grande Railroad — 

Authorized to take timber for construction and repairs 6, 165, 166 

Is entitled to the privileges of both the act of June 8, 1872 (17 Stat., 

339), and that of March 3, 1875 (18 Stat., 482) 166 

Fuel- 
Public timber may not be taken by railroad companies for fuel 164 

Private use — 

Railroads constructed for, not entitled to use public timber 186 

Repairs — 

Public timber may not be taken for, by railroad companies, except in 
the case of the Denver and Rio Grande Railroad Company. 6, 76, 179, 180 
Sale — 

Timber may not be taken from public lands to sell to railroad com- 
panies, nor to be sold by railroad companies 165, 182 

Snow sheds, fences, depot and section houses — 

Public timber may be taken for 166 

Act of June 3, 1878 (20 Stat., 88)— 

Railroad companies can not take timber under 67, 77, 80, 180 

Act of March 3, 1891 (26 Stat., 1093)— 

Does not enlarge the rights of any railroad company 7, 190, 192 

Replevin: 

See Liability {civil proceedings) . 
Reservations: 
Forest — 

Establishment of, provided for 7, 10, 189 

Surv'ey and administration of, provided for 7, 8, 10 

Owners of mining claims on certain forest reservations in Colorado 

authorized to use the timber on such claims in their development. . 8, 11 
Section 24 of the act of March 3, 1891 (26 Stat., 1095), not repealed by 

the act of August 4, 1892 (27 Stat., 348) 101 

Compilation issued by the General Land Office, November 6, 1900, 
contains laws, decisions, and regulations relating to forest reserves. 189 
Indian — 

Use by Indians of dead or down timber on 8, 11 

Ownership of timber unlawfully cut on Indian allotments and 

reservations 60, 63 

Right of Indians to cut timber from allotments and reservations... 149-150 
Reserved lands — 

Timber on. See sections 2460, 2461, 2462, 2463, 5388, U. S. R. S. 
Also, act of March 3, 1875 (18 Stat, 481), and act of June 4, 1888 
(25 Stat., 166). 
Timber trespass on, prohibited -• 6, 7, 10, 122 



Index. 219 

Reservations — Continued. Page. 

Reserved lands — Continued. 

Right-of-way act of March 3, 1875 (18 Stat., 482), does not apply to 
any lands within any military park or Indian reservation, or other 
lands especially reserved from sale, except in cases in which it may 

be specially so provided 164 

Revised Statutes Cited and Construed: 

Section 2458 5,10 

Section 2459-. 5,10 

Section 2460 5,6,10 

Section 2461 5, 10, 11, 1.3-22, 27-29, 50-57, 

100, 10.3-106, 109, 115, 122-124, 126-129, 133, 1.36-138, 156, 192, 197, 208 

Section 2462 5, 10, 57 

Section 2463 5, 6, 10 

Section 3469 44 

Section 3828 52 

Section 4205 , 5, 10 

Section 4751 5, 10, 29, 51-53, 55, 56, 101 

Section 5264 6, 10, 187 

Section 5388 6, 10, 122 

Section 5456 157 

Rule of Damag-es: 

See LkiMliUj {civil proceedings). 
Sale: 

Public tiin])er unlawfully cut may be; disposed of by public or private 

sale 52, 56, 58-60 

Of public timber by a purchaser, after it is claimed as the property of the 
United States by its agent, does not divest the Government of its title. . 60 

Of standing timber is a sale of an interest in real estate 62 

Advertisement of sale of public timber must be by consent of the Secre- 
tary of the Interior 52 

Timber may not be cut under act of June 3, 1878 (20 Stat., 88), for pur- 
poses of sale OS, 86 

Of surplus timber cut by a settler who is engaged in improving his land, 

without intent to defraud the Government, is lawful 140, 146 

Of timber on unreserved public land, not authorized by act of March 3, 

1891 (26Stat., 1093) 196 

Timber may not be taken from public lands to sell to railroad companies, 

nor for sale by railroad companies 165, 182 

Of timber lands in the public land States, provided for (>, 10, 98 

Of dead and down timber on Indian reservations in Minnesota, provided 

for 8,11 

Of storm-killed timber in Florida, provided for 8, 11, 155 

Of timber in Alaska, provided for 8, 11, 207 

Of timber on part of the Colville Indian Reservation, in Washington, 

provided for 9, 1 1 , 202 

Sawmills: 

See Seizure; Structures. 

Unlawfully erected on the public domain, subject to seizure 61 

School Fund, Public: 

Fines collected under "Forest fire" act of May 5, 1900 (31 Stat., 169), to 
be paid into 198 



220 Index. 

School Lands: Page. 

Trespass on sections reserved for schools in Territories 156 

Section 2461, XT. S. R. S.: 

Action under 5,10,11,13-22,27,28,29,50-57, 

100, 103-106, 109, 115, 122-124, 126-129, 133, 136, 138, 156, 192, 197, 208 

Modified by enactm ent of various subsequent acts 11, 115,1 26 

Prosecution under, not prevented by a homestead entry 14, 122 

Section 5 of the act of June 3, 1878, 20 Stat., 89 (extended by act of 
August 4, 1892, "27 Stat., 348), authorizes settlement of prosecutions 

under, in the public land States 6, 50, 51, 53, 100, 103-106 

Not repealed by act of June 3, 1878 (20 Stat., 89) nor by act of August 4, 

1892 (27 Stat., 348) 22,103-106 

Not repealed by act of March 3, 1891- (26 Stat., 1093) 192 

Is in force in the district of Alaska 208 

Section 3469, U. S. R. S.: 

Settlement of claims in favor of the United States, authorized l)y 44 

Section 4751, U. S. R. S. : 

Provides for the disposition of certain forfeitures and penalties 5, 

10,29,51,52,56 
Modified and partly repealed by act of June 3, 1878, 20 Stat., 89 (extended 

by act of August 4, 1892, 27 Stat., 348) 51,53-56,101,106 

Seizure: 

See LiabilUy (civil proceedings) . 

Authority of Department of the Interior to seize timber unlawfully cut on 

public lands 46,47,50,56-60 

Of vessels having on board timber unlawfully cut on public lands 5, 10 

Of timber exported from the Territories of the United States 6, 10, 53, 57, 59 

And sale of sawmills erected on the public domain by depredators 61 

Settlement: 

See Liability {civil proceedings). 

Authority for effecting, through the Department of the Interior, in cases of 

public timber trespass 44-51 

Authorized by section 3469, U. S. R. S 44 

Distinction between settlement and compromise ,. 44 

No authority for the Department of the Interior accepting less, in adjust- 
ing a case of public timber trespass, than is required by the established 

rule cf damages 44 

No authority for accepting an offer to pay more than is required by the 

established rule of damages 39 

Criminal liability can not be compromised 22 

A proposition of, submitted with the understanding that, if accepted, 

criminal proceedings for the trespass will be waived, will be rejected.. 48 
Act of June 3, 1878 (20 Stat, 89) — 

Section 5 (extended by act of August 4, 1892, 27 Stat., 348) provides 
that parties prosecuted under section 2461, U. S. R. S., in the public 
land States, may be relieved from criminal liability by payment of 

$2.50 per acre for the land trespassed on 50, 51, 53, 56, 100, 103-106 

Payment of $2.50 per acre only relieves from criminal liability 51, 103 

Act of June 15, 1880 (21 Stat., 237)— 

Authorizes settlement by purchase of land trespassed on 51 

Settler: 

On unsurveyed land, who is complying, in good faith, with the require- 
ments of the homestead law, has the same privileges with regard to the 
timber on the land as a bona fide homestead entryman, and is subject 
to the same restrictions 148 



Index. 221 

Shares: Page. 

Cutting timber on 121 

Smelting: 

Timber may not be cut for smelting purposes under act of June 3, 1878 

(20 Stat., 88) 68,92 

Timber may be cut for smelting purposes under act of March 3, 1891 (26 

Stat, 1093) 93 

Snow Sheds: 

See EaUroads. 
Special Agents: 

Authority for appointing, for protection of public timber 50, 57, 59 

Standing Timber: 

Is a i^art of the realty 61, 63 

Statutes (U. S. Revised): 

See Reviml Statutes; Sec. 2461, U. S. E. S.; Sec. 3469, U. S. E. S.; Sec. 4751, U. S. E. S. 
Storm-killed Timber: 

Use of, on certain homestead entries in Florida, authorized 8, 11, 155 

Structures: 

Wrongfully placed on public land 28, 61 

Survey: 

Expense of making, should be included in the amount for which the tres- 
passer is held liable 39, 50 

Synopsis: 

Of public timber laws 5-11 

Telegraph Companies: 

Use of timber by 6, 10, 187 

Telephone Companies: 

Act of July 24, 1866 (14 Stat., 221) , contains no grant or authority for the 

construction or maintenance of telephone lines 187, 188 

Timber and Stone Lands: 

See Act of June 3, 1878 {20 Stat., 89). 

Sale of lands in the public-land States, chiefly valualile for timber or build- 
ing stone, provided for 6, 10, 98 

Timber, Public: 

Defined 13,18 

Ownership in respect to cut timber 59-64 

No person has a right to cut or remove, without some express provision of 

law authorizing him to do so 180 

Transporting Public Timber: 

See Export. 
Trespass on Public Timber: 

Right of Government to sue for 33 

AVhat constitutes 42, 160 

Troops: 

See Section 2460, U. S. R. S., authorizing the President to employ land and 
naval forces to protect the timber of the United States in Florida. 
Trover: 

See Liability {civil proceedings) . 
Turpentine Trespass: 

Use of public timber for turpentine purposes 33, 157-163 

Boxing and chipping timber not "cultivation," as contemplated by the 

homestead law 157 

XTnsurveyed Lands: 

Use of public timber by settlers on 148 



222 Index, 

Washington: Page. 
Privileges of the act of March 3, 1891 (26 8tat., 1093), extended to resi- 
dents of 9,11,191,193 

Waste : 

Wanton waste of public timber prohibited. See acta of June 3, 1878 (20 

Stat, 88), June 3, 1878 (20 Stat., 89), and May 5, 1900 (31 Stat., 169). 
Parties convicted of timber trespass on the public mineral lands for failing 

to utilize all of each tree cut that could profitably be used 69 

Wyoming: 

The Secretary of the Interior authorized to grant permits to citizens of 

Idaho and Wyoming to cut timber in Wyoming for removal to Idaho. 9, 11, 194 
Citizens of Montana and, may take timber from specified tract in Mon- 
tana, for use in either of said States 9, 11, 195 



TABLE OF OASES OITED. 



Page. 

Althen r. Kelly, 32 Minn., 280 (U. S. Digest, Vol. XVI, p. 347) 65 

American Bell Telephone Co. v. Albright (32 Fed. Rep. ,287) 43 

Aurora Hill, etc.. Mine Co. v. Eighty-five Mine Co. (34 Fed. Rep., 521) 37 

Baker I). Wheeler, 8 Wend. (N. Y.), 505 35 

Baldwins. Porter (12 Conn., 484) _ 35 

Bardon v. Railroad Co. (145 U. S., 535) 134 

Barry i). Edmunds (116 U. S., 550) 33 

Barton Coal Co. r. Cox (39 Md., 1, S. C. ; 17 Am. Rep., 525) 30 

Benson Mining Company v. Alta Mining Company (145 U. S., 428) . 41, 134, 135, 137 

Berry w. Fletcher et al. (1 Dill., 67) 42 

Belkt). Meagher (104 IT. S., 279) 136 

Betts V. Lee (5 Johns., 348) , 30 

Blassingame v. Glaves (6 B. Munroe, 38) 24 

Bly, E. H. V. The United States (4 Dill., 464) 28 

Boardman r. Goldsmith, 48 Vt., 403 (U. S. Digest, Vol. VII, p. 231) 32 

Boetcher (-•. Staples, 27 Minn., 308, S. C. (38 Am. Rep., 295) 33 

Bogan V. Mortgage Co., 11 C. C. A., 128 (63 Fed. Rep., 192) 134 

Bradley v. New York and New Haven R. R. (21 Conn., 294) 177 

Bustaraente v. United States (42 Pac. Rep., Ill) 18 

Buttz V. Northern Pac. Rwy. Co. ( 7 Sup. Ct. Rep. , 100 ) 184 

Carroll v. Safford (3 How., 441) 127 

Cherokee Nation v. Georgia (5 Peters, 48 ) 63 

Clarke v. Improvement Co. (35 Fed. Rep., 478) 158 

Coffey V. United States (116 U. S., 442) 27 

Cohn, Isadore (20 L. D., 238) 39, 115 

Conway v. United States, 37 C. C. A., 200 (95 Fed. Rep., 615) 138 

Cornelius r. Kessel (128 U. S., 456) 134 

Cotton t). United States (11 Howard, 229) 23,57,64,157,199 

Cross V. Guthrie (2 Root, Con. R., 90) 24 

Cunningham et al. v. Metropolitan Lumber Co. (110 Fed. Hep., 332) 117 

Dakota Central R. R. Co. v. Downey (8 L. D., 115) - 176, 177 

Deffeback ('. Hawke (115 U. S., 392) 134 

Denver and R. G. R. R. Co. r. United States, two cases (34 Fed. Rep., 838) .. 121, 

144, 165 
Dugan r. United States (3 Wheat., 181) 24,25,199 

Ellenwood r. Marietta Chair Co. (158 U. S., 105) 142 

Ellis I'. Wire (33 Ind., 127) 30 

Ensley v. Nashville, 58 Tenn., 144 (U. S. Digest, Vol. IX, p. 201) 32 

Erhardt v. Boaro and others (113 U. S., 537) 61, 64 

Forsyth I'. United States (9 Howard, 571) 20 

Foster v. The Commonwealth ( 8 Watts and Serg. , 77 ) 24 

Frisbiet. Whitney (9 Wall., 187) 124 

223 



224 TaUe of Casea Cited. 



Great Northern Rwy. Co. (14 L. D., 566) 179 

Grubbs V. United States, 44 0. C. A., 513 (105 Fed. Rep., 314) 138 

Haines r. Schultz; N. J. (14 Atl. Rep., 488) 158 

Handford et al. v. United States (92 Fed. Rep., 88) 60 

Hardin, Frank P., et al. (1 L. D., 597) 84 

Hartley, B. F., et al. v. United States (4 Dill., 464) 28 

Hartman v. Warren (76 Fed. Rep., 157) 135 

Hastings, etc., Rwy. Co. v. Whitney (132 U. S., 357) 124, 134 

Heard v. James (49 Miss., 236) 35 

Hilton?'. Woods (Law Rep., 4 Eq., 432) 35 

Hutchins et al. v. King (1 Wall., 53) 62 

James v. Germania Iron Co. ( 107 Fed. Rep. , 597 ) 135 

Jegon V. Vivian (Law Rep., 6 Ch. App., 742) 35 

Jerome v. Ross ( 7 Johns. Ch. , 315) 64 

Johnson v. Mcintosh (8 Wheat., 574) 63 

Kansas Pacific Rwy. r. Atchison Rwy. ( 112 U. S. , 414 ) 124 

Kansas Pacific Rwy. v. Dunmeyer (113 U. S., 629) 124,135 

Keirn v. Warfield, 60 Miss. , 799 ( U. S. Digest, Vol. XIV, 803 ) 21 

Kendall, Townsend and Walter 189 

Kootenai Valley R. R. Co. (28 L. D., 439) 174 

Le Roy (Theodore) v. George Wright et al. (4 Sawyer, 530) 64, 65 

Livingston v. Rawyards Coal Co. (5 App. Cas. , 25 ) 35 

Lovejoy r'. Murray (3 Wall., 1) 43 

Manro v. Almeida (10 Wheat., 494) 24 

Markham v. Howell, 33 Ga., 508 (U. S. Digest, Vol. I, p. 401) 65 

Martin V. Porter (5 M. and W., 351) 35 

McCutchen, J. W., et al. (29 L. D., 322) 196 

McLean (S. P. ) Coal Company v. Long (Sup. Ct., 111., Oct., 1876) 30 

Moody r. Whitney (38 Maine, 174) 30 

Morgan r. Powell, (3 Ad. and E., N. S., 278) 35 

Murphy?'. Dunham (38 Fed. Rep., 511) 37 

Nesbit ('. St. Paul Lumber Co. (21 Minn., 491 ) 28, 29, 37 

Newhall ('. Sanger (92 U. S., 761) 124 

Nichols V. Jones and Another (19 Fed. Rep., 855) 64 

Norris et al. v. United States (44 Fed. Rep., 735) . 60 

Northern Pacific R. Co. v. Hussey (61 Fed. Rep. , 231 ) 183 

Northern Pacific Railroad Company v. Lewis ( 162 U. S. , 366) 77 

Northern Pacific Railroad Company v. Traill County ( 115 U. S. , 609) 185 

Page, A. B 81 

Phinney, Mary A., et al. (28 L. D., 163) 26 

Railroad Co. v. Arnold; Ala. (4 South. Rep., 359) 158 

Railroad Co. v. McShane (22 Wall., 444) 127,185 

Railroad Co. v. Prescott (16 Wall., 603) 127, 185 

Railroad Co. v. Roberts; Ky. (8S.W. Rep., 459) 158 

Railway Co. v. Garcia; Tex. (7 S.W. Rep., 802) 158 

Richmond v. The Southern Bell Telephone and Telegraph Co. (174 U. S., 

761) 188 

Riddlev. Driver (12 Ala., N. S., 590) 30 

Rogers r. Bates; 1 Mich. (N. P.), 93 (U. S. Digest, Vol. II, p. 590) - 62 

Russell V. Brown; 63 Me., 203 (U. S. Digest, Vol. VI, p. 758) 28 

Russell V. Meyers; 32 Mich., 522 (U. S. Digest, Vol. VIL, p. 839) 62 



Table of Ca^es Cited. 225 

Page. 

Schulenberg v. Harriman (2 Dill., 398) 30 

Schulenberg et al. r. Harriman (21 Wall., 44) 61,143 

Sheridan v. McMullin; 12 Oreg., 150 (U. S. Digest, Vol. XYII, p. 337) 65 

Shiver i-. United States (159 U. S., 491) 11, 106, 118, 122, 136, 138, 146 

Silsbury v. McCoon (3 Comst., 379) 30 

Silva y. Garcia; 65 Cal., 591 (U. S. Digest, Vol. XVI, p. 347) 65 

Single i\ Schneider (24 Wis., 299) 35 

Single V. Schneider (30 Wis., 570) 30 

Sioux City Land Co. v. Griffey (143 U.S., 32) 124 

Smith V. Thompson; 55 Md., 5 S. C; 39 Amer. Rep., 409 (U. S. Digest, Vol. 

XIII, p. 874) 33 

Smith V. Weaver (1 Taylor, 58) 24 

Spencer, Nannie, administratrix of Warren Faver 188 

Spies and Martin 31 

Stark V. Starrs (6 Wall., 402) 134 

Stephenson (Thomas) r. William L. P. Little and others (10 ^Nlieh. Rep., 433) . 59 

Stone r. United States (64 Fed. Rep., 667) 27, 116, 105 

Stone V. United States (167 U. S., 178) 132, 138, 140, 165 

Storm V. Green; 51 Miss., 103 (U. S. Digest, Vol. VIII, p. 223) 32 

Tellers. United States (113 Fed. Rep.. 273) 127 

The Timber Cases (11 Fed. Rep., 81) 115,127 

Town V. Dubois (6 Wall., 548) 119 

United Merthyr Collieries Company (Law Rep., 15 Equity Cases, 46) 30 

United States v. James Autrey 121 

United States v. James F. Bailey 157 

United States v. Bank of the Metropolis ( 15 Feters, 392) 25 

United States r. Baxter et al. (46 Fed. Rep., 350) 42 

United States v. Benjamin ( 21 Fed. Rep. , 285 ) 84, 90, 98, 112 

United States v. Ephraim Briggs (9 Howard, 351 ) 20, 24 

United States v. O. S. Burdett and A . Roi^entield 187 

United States v. J. C. Calhoun 157 

United States v. William Childers; 8 Sawyer, 171 (12 Fed. Rep., 586) 183,184 

United States v. Cook (19 Wall., 591) 57, 61, 62, 77, 115, 126, 138, 146, 150 

United States v. Peter Darton (6 McLean, 46) 14 

United States r. Day, et al. (4 Dill., 464) 28 

United States v. Denver and Rio Grande Ry. Co. ( 150 U. S. , 1 ) 1 72, 1 77 

United States v. O. A. Dodge, et al 31, 80, 115, 180 

United States v. Eccles et al. (Ill Fed. Rep., 490) 43,173 

United States r. Edwards (38 Fed. Rep., 812) 96 

United States v. English et al. (107 Fed. Rep., 867) 89 

United States r. Eureka and P. R. Co. (40 Fed. Rep. ,419) 80, 180 

United States v. Freyberg (32 Fed. Rep., 195) 127 

United States v. Gear (3 Howard, 120) 24, 25, 65, 157 

United States v. Hacker (73 Fed. Rep., 292) 90 

United States v. W. S. Harrison 22 

United States v. Henry Hazlctt 1 19, 165 

United States r. Heilner (23 Fed. Rep., 82) 37 

United States v. Humphri.'s ( 149 U. S., 277) 42 

United States v. John C. Kirby et al 117 

United States r. Lane (19 Fed. Rep., 910) 116,127 

United States v. Lee (106 U. S., 222) 23 

United States v. Mile J. Legg et al. (Mont.) 78 

21150—03 15 



226 Talle of Cases Cited. 



United States v. Loughrey (172 U. S., 206) 186 

United States v. Lynde et al. (47 Fed. Rep., 297) 80, 165 

United States v. McEntee (23 Internal Revenue Record, 368) 127 

United States r. Mock (149 U. S., 273) 39, 131 

United States v. Murphy (32 Fed. Rep., 376) 116, 127 

United States r. Levi W. Nelson (5 Sawyer, 68) 11, 81, 115, 127, 137 

United States r. Niemeyer et al. (94 Fed. Rep., 147) 117 

United States r. Ordway (30 Fed. Rep., 30) 37, 183 

United States r. Ordway (30 Fed. Rep., 36) 184 

United States v. Perkins et al. (44 Fed. Rep., 670) 116 

United States v. Price Trading Company et al. (109 Fed. Rep., 2.39) 60,96, 173 

United States v. Railroad Company (98 U. S. , 334) 170 

United States v. Reder (69 Fed. Rep., 965) 69 

United States v. Redy (5 McLean, 358) 20 

United States v. Richmond IMining Company (40 Fed. Rep., 415) 96 

United States v. St. Anthony R. Co. (114 Fed. Rep. ,722) 165, 174 

United States r. Scott (39 Fed. Rep., 900) 37,51,103 

United States v. Smith (11 Feb. Rep., 487) 83, 90, 98, 107, 113, 127 

United States v. James A. Smith 31 

United States r. Rafael Soto ; Ariz. (64 Pac. Rep. , 419 ) 17 

United States v. Stone (49 Fed. Rep., 848) 21 

United States r. Stores and another (14 Fed. Rep., 824) 13, 19, 127 

United States v. Taylor (35 Fed. Rep., 484) , 33, 157 

United States r. E. S. Taylor 157 

United States v. Thompson (6 McLean, 56) 21 

United States v. Madison A. Tipton 70 

United States v. Isaac Van Winkle 93 

United States v. Williams and another ( 6 Mont. , 379 ) 69 

United States v. Williams and others; United States v. Williams and another 

(18 Fed. Rep., 475) 37,101,127 

United States ?'. Wingate (44 Fed. Rep., 129) 37 

United States r. Yoder (18 Fed. Rep., 372) 115, 127 

Ward V. AVard, 41 Iowa, 686 (U. S. Digest, Vol. VII, p. 230) 32 

Washington and Idaho R. R. v. C«ur d'Alene Rwy. (160 U. S., 77) 177 

Webbr. Oilman, Me. (13 Atl. Rep., 688) 158 

Wells r. Nickles (104 U. S., 444) 46,50,57,59 

West Point Iron Co. r. Reymert, 45 N. Y., 703 (U. S. Digest, Vol. Ill, 359) .. 63 

Wetherbee t'. Green (22 Mich., 311) 30 

Weymouth v. Chicago and Northwestern Rwy. Co. (17 Wis., 550) 35 

White r. Stribling, Tex. (9 S. W. Rep., 81) 158 

Whitney r. Taylor (158 U. S., 85) 124 

Wilcox V. Jackson (13 Pet., 498) 124 

Willis and Wife v. Miller, treasurer ( 29 Fed. Rep. , 238 ) 33 

Wilson and others v. Rockwell and othei'S (29 Fed. Rep., 674) 64 

Winchester r. ^Craig (33 Mich., 205) 35 

Witherapoon v. Duncan (4 Wall., 210) 124, 127, 134, 136 

Wisconsin Rwy. Co. r. Price County (133 U. S., 496) 127 

AVoodr. Morewood (3 Ad. & E., n! S., 440) 35 

Woodenware Company v. United States (106 U. S., 432) 34, 38, 41 , 46 

Worcester v. Georgia (6 Peters, 580) 63 

Yosemite Valley Case, The (15 Wall., 77) 124 



ACTS OF CONG-RESS CITED AND CONSTRUED. 



Pag-e. 

March 1, 1817 (3 Stat., 347) 5,15 

February 23, 1822 (3 Stat., 651) 5 

March 2, 1831 (4 Stat., 472) 11, 13, 14, 20, 24, 106, 109, 115, 126 

Junes, 1856 (11 Stat., 21) 186 

March 2, 1861 (12 Stat, 239), sec. 14 156 

July 2, 1864 (13 Stat. ,365) 165, 170, 183, 185 

July 24, 1866 (14 Stat., 221) 187 

July 15, 1870 (16 Stat., 305) 185 

May 10, 1872 (17 Stat., 95), sec. 12 110 

June 8, 1872 (17 Stat., 339) 166-172 

March 3, 1875 (18 Stat., 479) 157 

March 3, 1875 (18 Stat., 481) 6,10 

March 3, 1875 (18 Stat., 482) 6, 10, 120, 140, 143, 164-180 

March 3, 1877 (19 Stat., 405) 167 

April 30, 1878 (20 Stat., 46), sec. 2 6,10,52,53,54,57,59 

June 3, 1878 (20 Stat., 88) 6, 10, 57, 67-98, 105, 107-114, 180, 192, 195 

June 3, 1878 (20 Stat., 89) 6, 

7, 10, 22, 26, 50, 53, 54, 57, 82, 90, 97, 98-114, 127, 128, 129, 133, 199 

June 15, 1880 (21 Stat., 237) 7,51 

June 16, 1880 (21 Stat., 287) •. 26 

Februarys, 1887 (24 Stat., 388) 149 

February 15, 1887 (24 Stat., 402) 179 

June 4, 1888 (25 Stat., 166) 6,7,10 

February 16, 1889 (25 Stat., 673) 7, 11 

September 29, 1890 (26 Stat. , 496) 6, 164 

March 3, 1891 (26 Stat., 1093) 7,11,92,93,190-197 

March 3, 1891 (26 Stat., 1095), sec. 24 7,10,118,189,196 

July 1, 1892 (27 Stat. ,62) 202, 205 

August 4, 1892 (27 Stat., 348) 6, 

7, 10, 11, 22, 51, 53, 56, 82, 97, 101, 105, 127, 128, 129, 136, 199 

February 13, 1893 (27 Stat., 444) 7, 8, 11, 92, 191, 193 

January 19, 1895 (28 Stat., 634) 8, 11, 151 

February 20, 1896 (29 Stat., 11), sec. 2 8, 10, 11, 189 

February 26, 1897 (29 Stat., 599) 8,11,155 

June 4, 1897 (30 Stat., 34-36) 7,8,10 

June 7, 1897 (30 Stat., 90) 8,11 

May 14, 1898 (30 Stat., 409), sees. 2, 6, and 11 8, 11, 206 

July 1, 1898 (30 Stat., 593) 9,11,202,205 

July 1, 1898 (30 Stat., 618) 9,11,194 

May 5, 1900 (31 Stat., 169) 9,10,198,199 

March 3, 1901 (31 Stat., 1436) 9, 11, 191, 193 

March 3, 1901 (31 Stat., 1439) 7,9,11,195 

227 

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